In this Onslow County case, defendant appealed his convictions for statutory rape, incest, and indecent liberties with a child. Defendant argued (1) a missing page of the transcript justified a new trial; (2) error in denying his motion to dismiss the incest charge; (3) error in denying his motion to suppress; and (4) a clerical error in the judgment required remand. The Court of Appeals did not find justification for a new trial or error with denial of the motion to suppress, but did vacate defendant’s incest conviction and remanded the case for correction of the clerical error on the judgment and resentencing. 

In 2018, the 15-year-old victim of defendant’s sexual advances moved in with defendant and his wife in Jacksonville. The victim is the daughter of defendant’s wife’s sister, making her defendant’s niece by affinity, not consanguinity. During several encounters, defendant made sexual advances and eventually engaged in sexual contact with the victim, and she reported this conduct to her father, who called the police. Prior to his trial, defendant moved to suppress statements made to after his arrest by the Onslow County Sheriff’s Office, but the trial court denied the motion. 

Reviewing (1), the Court of Appeals explained that a missing page from a trial transcript does not automatically justify a new trial. Instead, the applicable consideration is whether the lack of a verbatim transcript deprives the defendant of a meaningful right to appeal, and the court looked to the three-part test articulated in State v. Yates, 262 N.C. App. 139 (2018). Because defendant and his counsel “made sufficient reconstruction efforts that produced an adequate alternative to a verbatim transcript, he was not deprived of meaningful appellate review.” Slip Op. at 9.

Turning to (2), the incest charge, the court agreed with defendant that “the term ‘niece’ in [G.S.] 14-178 does not include a niece-in-law for the purposes of incest.” Id. The opinion explored the history of the incest statute and common law in North Carolina in extensive detail, coming to the conclusion that a niece-in-law does not represent a niece for purposes of criminal incest. As an illustration of the “absurd results” under North Carolina law if a niece by affinity were included, “an individual could marry their niece-in-law . . . [but] that individual would be guilty of incest if the marriage were consummated.” Id. at 20. As a result, the court vacated defendant’s incest conviction.

Considering (3), inculpatory statements made by defendant after his arrest, the court considered defendant’s arguments that the findings of fact were incomplete, and that the evidence did not support that he made the statements voluntarily. The court disagreed on both points, explaining that findings of fact “need not summarize all the evidence presented at voir dire,” as long as “the findings are supported by substantial and uncontradicted evidence, as they are here.” Id. at 26. As for the voluntariness of the statements, the court detailed several different points where defendant received Miranda warnings, signed an advisement of rights form, and even made a joke about being familiar with the rights through his work as an active duty marine with a law enforcement role. 

For defendant’s final issue (4), the clerical error, the court agreed with defendant that the trial court had orally dismissed the sexual activity by a substitute parent charge prior to sentencing. Although the jury did convict defendant of this charge, the transcript clearly indicated the trial court dismissed the charge before consolidating the other charges for sentencing. Looking to the rule articulated in State v. Smith, 188 N.C. App. 842 (2008), the court found that remand for correction was the appropriate remedy for the clerical error in the judgment to ensure the record reflected the truth of the proceeding. 

Finding itself bound by its prior decision in this felony child abuse case, the Court of Appeals rejected the defendant’s argument that the trial court committed plain error by improperly instructing the jury on the definition of the term “sexual act.” The defendant was charged under G.S. 14-318.4(a2). That statute does not define the term “sexual act” as used in the proscribed offense. That term is however defined in a separate subchapter of the General Statutes—G.S. 14-27.20(4)--to include various forms of sexual activity but excluding vaginal intercourse. The court noted that in two earlier cases--State v. Lark, 198 N.C. App. 82 (2009), and State v. Stokes, 216 N.C. App. 529 (2011)--it had applied the definition of sexual act found in G.S. 14-27.20(4) to felony child abuse without explaining why it did so. Then, in State v. McClamb, 234 N.C. App. 753 (2014), the court squarely addressed the question of whether the term sexual act as used in the child abuse statute included vaginal intercourse. McClamb distinguished Stokes, explaining that it only addressed the issue of digital penetration and did not hold that the definition of sexual act in the child abuse statute excludes vaginal intercourse. McClamb also distinguished Lark, explaining that it was limited to an analysis of fellatio as a sexual act. The court addressed the issue again in State v. Alonzo, __ N.C. App. __, __, 819 S.E.2d 584, 587 (2018). That decision noted a conflict between McClamb, Stokes, and Lark, and applying In re Civil Penalty, 324 N.C. 373 (1989), declined to follow McClamb, concluding that it was bound by the earlier Lark decision. Because the state Supreme Court later stayed the mandate in Alonzo, that case does not yet have any precedential effect. The court declined the defendant’s invitation to adopt the same reasoning applied in Alonzo and conclude that McClamb is not good law, finding that In re Civil Penalty “does not empower us to overrule precedent in this way.” It explained: 

In re Civil Penalty stands for the proposition that, where a panel of this Court has decided a legal issue, future panels are bound to follow that precedent. This is so even if the previous panel’s decision involved narrowing or distinguishing an earlier controlling precedent—even one from the Supreme Court—as was the case in In re Civil Penalty. Importantly, In re Civil Penalty does not authorize panels to overrule existing precedent on the basis that it is inconsistent with earlier decisions of this Court.

The court went on to note that the Supreme Court has authorized it to disregard its own precedent in certain rare situations, such as when two lines of irreconcilable precedent developed independently. But this is not such a case. The court concluded that under In re Civil Penalty it must follow McClamb “because it is the most recent, controlling case addressing the question.” Thus, the trial court’s instructions were not erroneous.

The defendant in this Davidson County case was tried for common law robbery, habitual misdemeanor assault, and habitual felon. The charges stemmed from an incident between the defendant and his then-girlfriend at her residence, resulting in him assaulting her, damaging her car, and ultimately taking her car after she fled inside the home. The defendant had recently purchased the car for the woman and had been reimbursed by her family for its value, and this was apparently part of the argument. At trial, evidence was also presented that the defendant provided the victim heroin during their relationship. The defendant was convicted on all counts and appealed.

(1) The defendant argued there was insufficient evidence that he used force to take the car or that he took property from the victim’s presence. The court rejected the arguments, observing that “even when there is some attenuation between the use of force and the taking, the action can still amount to a continuous transaction.” Slip op. at 7. Here, the defendant’s acts of assaulting the victim and stealing her car occurred within a 20-minute time period in the victim’s front yard, and evidence showed that the argument and assault were related to the car. Viewed in the light most favorable to the State, the victim fled in response to the defendant’s assault, and the defendant took her car immediately afterwards. This was sufficient to show a continuous transaction linking the defendant’s use of force to the taking of property. The same facts showed that the taking occurred “in the presence of” the victim. In the words of the court:

If the force . . . for the purpose of taking personal property has been used and caused the victim in possession or control to flee the premises and this is followed by the taking of the property in one continuous course of conduct, the taking is from the “presence” of the victim.” Id. at 8 (citation omitted).

The trial court did not therefore err in denying the motion to dismiss the common law robbery charge for insufficient evidence.

(2) The defendant argued that the testimony about him giving the victim heroin during their relationship was unduly prejudicial and violated N.C. Evid. R. 404(b). Assuming without deciding that the admission of this testimony violated Rule 404(b), any error was harmless in light of “overwhelming evidence” of the defendant’s guilt.

(3) The trial court erred by failing to give the defendant notice and an opportunity to be heard on attorney fees. The record contained no colloquy between the trial judge and the defendant on the issue and no other evidence showed that the defendant was given a chance to be heard. Thus, the civil judgement on attorney fees was vacated and the matter remanded for hearing on that issue only. The convictions were otherwise unanimously affirmed.

In this Wake County case, defendant appealed his convictions for forcible rape, sex offense, kidnapping, various assault charges, and interfering with emergency communication, arguing (1) he was deprived of his right to autonomy in the presentation of his defense, (2) he was deprived of effective assistance of counsel when his attorney admitted guilt during closing argument, and (3) the trial court lacked jurisdiction to sentence him for habitual misdemeanor assault due to a facially invalid indictment. The Court of Appeals majority disagreed, finding no error. 

In April of 2020, defendant came to trial for assaulting and raping a woman he was dating at the time. During the trial, defense counsel informed the court that defendant would not testify or present evidence, and the trial court conducted a colloquy to ensure defendant was knowingly waiving this right. During the colloquy, defendant mentioned documentary evidence he wanted to admit, but that his attorney had not admitted. The trial court did not instruct defense counsel to introduce the evidence. During closing argument, defense counsel mentioned that defendant was not guilty of kidnapping, sexual offense, or rape, but did not mention assault. Defendant was subsequently convicted, and appealed.  

In (1), defendant contended that he and defense counsel had reached an absolute impasse about the documentary evidence, and the trial court committed a structural error by failing to instruct defense counsel to comply with defendant’s wishes to admit the evidence. The Court of Appeals first noted the rule that “where the defendant and his defense counsel reach an absolute impasse and are unable come to an agreement on such tactical decisions, the defendant’s wishes must control.” Slip Op. at 5. However, here the court was “unable to determine from the cold record whether there was a true disagreement, which would amount to an absolute impasse.” Id. at 7-8. Additionally, the court explained that even if there was an error, it was not a type recognized as structural by the Supreme Court, referencing the list identified in State v. Minyard, 289 N.C. App. 436 (2023). 

Moving to (2), defendant argued his defense counsel committed an error under State v. Harbison, 315 N.C. 175 (1985), which would represent ineffective assistance of counsel. However, the court did not see a Harbison error, noting “defense counsel here never implied or mentioned any misconduct [by defendant]” while giving closing argument. Slip Op. at 15. Instead, the court held that “[defense counsel’s] statements cannot logically be interpreted as an implied concession of Defendant’s guilt.” Id.  

Finally, in (3) defendant argued that the indictment was flawed as it failed to state the assault caused “physical injury.” Id. at 17. The court explained that here, count VIII of the indictment alleged that defendant caused “serious injury” for the assault inflicting serious injury charge. Id. at 18. The court determined that the broader term was sufficient, as “it logically follows Defendant was noticed of his need to defend against an allegation that he caused physical injury as ‘serious injury’ is defined to include physical injury.” Id. at 21. 

Judge Murphy concurred in part and dissented in part by separate opinion, and would have held that the indictment for habitual misdemeanor assault in (3) was insufficient as physical injury and serious injury were not synonymous.  

In this Davidson County case, defendant appealed his convictions for two counts of robbery with a dangerous weapon, arguing error in (1) denying his motion for new counsel because his appointed attorney was blind, (2) failing to intervene ex mero motu during his cross examination, and (3) failing to instruct the jury on the lesser-included offense of common-law robbery for defendant’s second count. The Court of Appeals found no error with (1) or (2), but found plain error in (3), vacating the second count of robbery and remanding for a new trial. 

In December of 2016, defendant and an associate entered a gaming business and proceeded to rob the business, the manager on duty, and a patron. Defendant pulled a firearm and pointed it at the manager, demanding money, while his associate, who did not have a firearm, demanded money from the patron. When the matter came for trial in May 2022, defendant requested new appointed counsel because his attorney was blind. The trial court denied the motion and defendant proceeded with his appointed counsel. During the State’s cross-examination of defendant, the prosecutor repeatedly questioned defendant about exchanges he had with the court outside the presence of the jury, including profanity and accusations of racism, while defense counsel did not object to the questioning. At the conclusion of trial, defendant did not request an instruction on the lesser-included offense of common law robbery. 

Considering (1), the Court of Appeals first explained the two-part test for whether to grant new appointed counsel from State v. Thacker, 301 N.C. 348 (1980), and grappled with State v. Jones, 357 N.C. 409 (2003), ultimately determining that it would “purely review the trial court’s denial of Defendant’s motion for new counsel for abuse of discretion.” Slip Op. at 7. Noting that the only issue identified by defendant was that his counsel was blind, the court concluded “[d]efendant’s counsel is licensed to practice law in this state, and we cannot say the trial court abused its discretion by failing to replace him because of an immutable physical condition—a physical condition that is not limited to this case.” Id. at 9. 

Moving to (2), the court noted that it agreed with defendant that “the State’s cross-examination of him was inappropriate,” but that the issues did not rise to plain error. Id. at 10. Because ample evidence supported defendant’s guilt, including video and eyewitness testimony, the court could not conclude that the failure to intervene impacted the jury’s findings of guilt or the fairness of the trial. 

Finally, in (3), the court agreed with defendant, explaining that “a rational jury could have reasonably inferred that neither Defendant nor [his associate] used a dangerous weapon to threaten [the patron].” Id. at 15. Because this meant that a rational jury could have convicted defendant for common-law robbery instead of robbery with a dangerous weapon, the failure to provide an instruction for the lesser included charge was plain error, and this error justified a new trial on the second count of robbery.  

The defendant was convicted by a jury of assault inflicting serious bodily injury and assault on a female based on an argument and fight with the mother of his child. He pushed her down, threw her head into the concrete, punched her, dragged her, and flung her onto the hood of a car. Among other injuries she had two concussions and a fractured eye socket that rendered her temporarily blind in one eye for two weeks. (1) The defendant argued on appeal that the indictment failed to allege the crime of assault inflicting serious bodily injury in that it alleged injuries that would be no more than misdemeanor assault inflicting serious injury, namely, “several lacerations to the face resulting in stitches and a hematoma to the back of the head.” The court of appeals disagreed, holding that the additional description of the victim’s injuries in the indictment was irrelevant as to its validity, and may be regarded as incidental to the salient statutory language, which was present. (2) The injury to the victim’s eye met the statutory definition of “serious bodily injury” in G.S. 14-32.4(a) in that the defendant was completely blind in her left eye for one week and her vision was not fully restored for two full weeks after the assault. She could not drive for one week and was not able to return to work until her vision was completely restored. A reasonable juror thus could have concluded that the injury resulted in a “protracted loss or impairment of the function of a bodily member or organ,” and that it therefore qualified as a serious bodily injury. (3) Finally, the court declined to consider the defendant’s argument on appeal that the trial court should have instructed the jury on misdemeanor assault inflicting serious injury. The defendant never objected to the instructions at trial and failed to argue plain error on appeal. Therefore, he waived the issue on appeal. A judge dissenting in part would have found the evidence here insufficient to qualify as a “protracted loss or impairment” when the victim fully recovered in in two weeks.

In this Warren County case, the Supreme Court affirmed the Court of Appeals decision finding that the second of defendant’s two kidnapping charges lacked support in the record and should have been dismissed because the rape supporting the kidnapping charge had already concluded before the events of the second kidnapping.

The two kidnapping charges against defendant arose from the rape of an 80-year-old woman in 2007. Defendant, posing as a salesman, forced his way into the victim’s home, robbed her of her cash, forced her from the kitchen into a bedroom, raped her, then tied her up and put her in a closet located in a second bedroom. The basis for the kidnapping charge at issue on appeal was tying up the victim and moving her from the bedroom where the rape occurred to the second bedroom closet. Defendant moved at trial to dismiss the charges for insufficiency of the evidence, and argued that there was no evidence in the record showing the second kidnapping occurred to facilitate the rape.

The Supreme Court agreed with the Court of Appeal majority that the record did not support the second kidnapping conviction. The court explored G.S. 14-39 and the relevant precedent regarding kidnapping, explaining that kidnapping is a specific intent crime and the state must allege one of the ten purposes listed in the statute and prove at least one of them at trial to support the conviction. Here, the state alleged “that defendant had moved the victim to the closet in the second bedroom for the purpose of facilitating the commission of rape.” Slip Op. at 30. At trial, the evidence showed that defendant moved the victim to the second bedroom “after he had raped her, with nothing that defendant did during that process having made it any easier to have committed the actual rape.” Id. Because the state only alleged that defendant moved the victim for purposes of facilitating the rape, the court found that the second conviction was not supported by the evidence in the record. The court also rejected the state’s arguments that State v. Hall, 305 N.C. 77 (1982) supported interpreting the crime as ongoing, overruling the portions of that opinion that would support interpreting the crime as ongoing. Slip Op. at 42.

Chief Justice Newby, joined by Justice Berger, dissented and would have allowed the second kidnapping conviction to stand. Id. at 45. 

In this habitual larceny case where the defendant was sentenced as a habitual felon, the court held that the habitual larceny indictment was not facially invalid for failure to allege all essential elements of the offense.  The defendant argued that the habitual larceny indictment was facially invalid because it did not specifically allege that he was represented by counsel or had waived counsel in the proceedings underlying each of his prior larceny convictions.  G.S. 14-72(b)(6) provides that a conviction for a larceny offense may not be used as a prior conviction for purposes of elevating misdemeanor larceny to felony habitual larceny unless the defendant was represented by counsel or waived counsel.  Reviewing the structure of G.S. 14-72(b)(6), the North Carolina Supreme Court’s definition of the elements of the offense in a prior case, and the availability to defendants of information regarding their counsel when they obtained prior convictions, the court held that representation by or waiver of counsel in connection with prior larceny convictions is not an essential element of felony habitual larceny and thus need not be alleged in an indictment for that offense.  Because representation by or waiver of counsel is not an essential element of the offense, the court also rejected the defendant’s related sufficiency of the evidence argument.

An embezzlement indictment was not fatally defective. The indictment alleged that the defendant:

unlawfully, willfully and feloniously did embezzle three thousand nine hundred fifty seven dollars and eighty one cents ($3,957.81) in good and lawful United States currency belonging to AMPZ, LLC d/b/a Interstate All Battery Center. At the time the defendant was over 16 years of age and was the employee of AMPZ, LLC d/b/a Interstate All Battery Center and in that capacity had been entrusted to receive the property described above and in that capacity the defendant did receive and take into her care and possession that property.

The defendant argued that the indictment failed to allege that she acted with fraudulent intent. The court determined that “the concept of fraudulent intent is already contained within the ordinary meaning of the term ‘embezzle,’” as used in the indictment. The court noted that the defendant did not argue that she was prejudiced in her ability to prepare a defense because of this issue. It further noted that to convict the defendant of embezzlement, the State must prove that she fraudulently or knowingly and willfully misapplied or converted the property. Here, the indictment can fairly be read to allege that the defendant “knowingly and willfully” embezzled from her employer.

            The court also rejected the argument that the indictment was defective for failing to specify the acts constituting embezzlement. The indictment alleges that the defendant embezzled a specific sum of money entrusted to her in a fiduciary capacity as an employee of the company. The court “fail[ed] to see how these allegations would not adequately apprise Defendant as to the charges facing her or prejudice her ability to prepare a defense.”

On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 802 S.E.2d 508 (2017), the court reversed, holding that the obtaining property by false pretenses indictment was not defective and that the evidence was sufficient to sustain the conviction on that charge.

(1) The obtaining property by false pretenses indictment, that described the property obtained as “United States Currency” was not fatally defective. The indictment charged the defendant with two counts of obtaining property by false pretenses, alleging that the defendant, through false pretenses, knowingly and designedly obtained “United States Currency from Cash Now Pawn” by conveying specifically referenced personal property, which he represented as his own. The indictment described the personal property used to obtain the money as an Acer laptop, a Vizio television, a computer monitor, and jewelry. An indictment for obtaining property by false pretenses must describe the property obtained in sufficient detail to identify the transaction by which the defendant obtained money. Here, the indictment sufficiently identifies the crime charged because it describes the property obtained as “United States Currency” and names the items conveyed to obtain the money. As such, the indictment is facially valid; it gave the defendant reasonable notice of the charges against him and enabled him to prepare his defense. The transcript makes clear that the defendant was not confused at trial regarding the property conveyed. Had the defendant needed more detail to prepare his defense, he could have requested a bill of particulars. In so holding the court rejected the defendant’s argument that the indictment was fatally defective for failing to allege the amount of money obtained by conveying the items.

(2) The State presented sufficient evidence of the defendant’s false representation that he owned the stolen property to support his conviction for obtaining property by false pretenses. The pawnshop employee who completed the transaction verified the pawn tickets, which described the conveyed items and contained the defendant’s name, address, driver’s license number, and date of birth. The tickets included language explicitly stating that the defendant was “giving a security interest in the . . . described goods.” On these facts, the State presented sufficient evidence of the defendant’s false representation that he owned the stolen property that he conveyed.

Because misdemeanor larceny and simple assault are lesser included offenses of common law robbery, the trial court erred by sentencing the defendant for all three offenses. The court rejected the State’s argument that the defendant was not prejudiced by this error because all three convictions were consolidated for judgment and the defendant received the lowest possible sentence in the mitigated range. The court noted that the State’s argument ignores the collateral consequences of the judgment. The court thus arrested judgment on the convictions for misdemeanor larceny and simple assault.

In this Surry County juvenile case, a petition was filed alleging that the juvenile committed extortion by obtaining a digital image of a victim, without her knowledge or consent, in which she was in only her bra and underwear. The petition also alleged that the juvenile used the image to obtain food from the school cafeteria while threatening to expose the image if the victim refused to buy the food or do what the juvenile asked of her. The petition did not name the victim. The juvenile was adjudicated delinquent and the court entered a Level 1 disposition. On appeal the juvenile asserted that (1) the court lacked subject matter jurisdiction because the petition was fatally defective in that it failed to name the victim, (2) the juvenile’s motion to dismiss should have been granted because the crime of extortion requires threat of unlawful physical violence and the juvenile did not make such a threat, (3) there was a fatal variance between the threat alleged in the petition and the proof at the adjudication hearing, (4) the written findings in the adjudication order were insufficient, and (5) the disposition order was insufficient in its failure to contain findings of fact to demonstrate that the court considered all the required factors in G.S. 7B-2501(c).

(1) The Court of Appeals concluded that there was no fatal defect in the petition. Juvenile petitions are generally held to the same standards as criminal indictments in that they must aver every element of the offense with sufficient specificity to clearly apprises the juvenile of the conduct being charged. Like an indictment, a fatally deficient petition fails to evoke the jurisdiction of the court. Central to the offense of extortion is the wrongfulness of the method by which the juvenile seeks to obtain something of value. Slip op. at ¶ 23. A charging instrument charging extortion need only aver the material elements of the offense, which are 1) that a wrongful demand was made with 2) the intent to demand something of value. Slip op. at ¶ 24. The petition in this case sufficiently alleged each of these elements. It was not necessary to specifically name the victim.

(2) The Court also assumed, without holding, that G.S. 14-118.4 is an anti-threat statute, the court holds that First Amendment jurisprudence does not limit the application of this statute to threats of unlawful physical violence. Slip op. at ¶ 31. The definition of a true threat, as provided in State v. Taylor, 379 N.C. 589, 2021-NCSC-164, does not require that a threat includes unlawful physical violence. There is no constitutional rule that threats are protected speech unless they threaten unlawful physical violence. Slip op. at ¶ 34. The State was not required to prove that the juvenile threatened unlawful physical violence.

(3) Next, the Court concluded that there was no fatal variance between the petition and the evidence. The essential element of extortion is that the juvenile used a wrongful threat to obtain something of value. The precise identification of what that thing of value was is not material, as long as the State proves that the juvenile obtained or attempted to obtain something of value. Slip op. at ¶ 40. The specific language in the petition alleging that the juvenile sought to obtain food from the cafeteria was unnecessarily specific and therefore surplusage. The fact that the evidence showed that the juvenile asked the victim to do his homework and the petition alleged that he asked her to obtain food from the cafeteria did not create a fatal variance.

(4) Next, the Court concluded that there were insufficient written findings in the adjudication order. G.S. 7B-2411 requires that, at a minimum, the court state in a written adjudication order that the allegations in the petition have been proved beyond a reasonable doubt. Language on the pre-printed form used, stating that “The following facts have been proven beyond a reasonable doubt: . . ,”  followed by a finding that states, “[a]t the hearing before the judge, the juvenile was found to be responsible for extortion in violation of 14-118.4,” is insufficient to satisfy this statutory requirement. Only a conclusory statement that the juvenile was responsible for the offense is insufficient. The trial court must affirmatively state the burden of proof in its written findings without regard to the pre-printed language on the form. The case is remanded for the court to make the necessary written findings in the adjudication order. The dispositional order also incorporated the predisposition report and the juvenile’s risk and needs assessment by reference. There were no written findings related to the factors the court is required to consider under G.S. 7B-2501(c) when ordering a disposition. The order is therefore insufficient. Because the adjudication order is vacated, this disposition order is also vacated. However, the insufficiency of the disposition order provides an independent ground for vacating the disposition order. On remand, the trial court may hold a new dispositional hearing to hear additional evidence needed to appropriately consider the factors required by G.S. 7B-2501(c).

In this robbery case where the defendant was punished as a habitual felon, (1) the defendant failed to preserve a fatal variance argument; (2) there was insufficient evidence of attempted armed robbery; (3) assuming without deciding that the trial court expressed its opinion in violation of G.S. 15A-1222, the defendant was not prejudiced; and (4) the trial court erred by accepting the defendant’s stipulation to having attained habitual felon status.  

Noting that a defendant must specifically state at trial that a fatal variance is the basis for a motion to dismiss in order to preserve that argument for appellate review, the court found that the defendant waived his variance argument by basing his motion to dismiss solely on insufficiency of the evidence. 

With regard to insufficiency of the evidence of attempted armed robbery, the defendant argued that there was insufficient evidence of the use of a dangerous weapon.  The defendant had threatened an associate with a pistol and rifle that appeared to be firearms but turned out to be an air pistol and a pellet rifle.  Reviewing the rules from State v. Allen, 317 N.C. 119 (1986) and related cases about sufficiency of the evidence in situations involving instruments that appear to be but may not in fact be dangerous weapons, the court said that because the evidence was conclusive that the pistol and rifle were not firearms, the State was required to introduce evidence of the weapons’ “capability to inflict death or great bodily injury” to merit submission of the attempted armed robbery charge to the jury.  As no such evidence was introduced, the trial court erred in denying the defendant’s motion to dismiss for insufficient evidence.

During the testimony of a defense witness, the trial court interjected to admonish the witness not to refer to the pistol and rifle as “airsoft” weapons because, in the trial court’s view, that terminology was not an accurate description of the items.  Assuming without deciding that this admonishment was an improper expression of opinion and accepting for argument that it may have negatively impacted the jury’s view of the witness’s testimony, there was not a reasonable probability that the jury would have reached a different verdict absent the admonishment.

Finally, the State conceded and the court agreed that the trial court erred by accepting the defendant’s stipulation to having attained habitual felon status without conducting the required guilty plea colloquy.

In this Yadkin County case, two defendants, Defendant A and Defendant P, appealed their convictions for misdemeanor child abuse. Both defendants appealed trial court’s (1) denial of their motion to dismiss at the close of evidence and (2) denial of their motion to reopen voir dire of a juror for bias; Defendant A also appealed trial court’s imposition of conditions of probation while the appeal was pending. The Court of Appeals found no error with the denial of motions, but did find error in imposing conditions of probation while an appeal was pending. 

Defendants’ convictions arose from a 2018 incident in the parking lot of the Yadkin County Sheriff’s Office. An officer from the Yadkinville Police Department, located across the street, walked out of the police department to head home when he heard a commotion across the street, and observed Defendant A pulling on something in the back seat of a car. When the officer approached, he observed Defendant A and Defendant P were having a “tug of war” over their child in the back seat of a car; both defendants were tried and eventually convicted of misdemeanor child abuse in 2021.

The court first considered the motion to dismiss, reviewing whether substantial evidence of each element of child abuse under N.C.G.S. § 14-318.2 was present in the record. Because there was no dispute that the defendants were the parents of the child in question, and that the child was less than 16 years old, the only element in dispute was whether defendants “created or allowed to be created a substantial risk of physical injury” for the child. Slip Op. at ¶11, quoting State v. Watkins, 247 N.C. App. 391 (2019). The court noted the “paucity” of caselaw, observing that Watkins appears to be the only reported case on the “substantial risk” theory under N.C.G.S. § 14-318.2. Slip Op. at ¶13. However, after exploring Watkins and unreported caselaw, the court explained that even a brief period of time placing the child at risk of physical harm could represent “substantial risk,” justifying the jury’s consideration of the question. After examining the evidence against both defendants, the court found no error with the trial court. 

Examining the motion to reopen voir dire, the court explained that N.C.G.S. § 15A-1214(g) granted substantial leeway to the trial court when conducting an inquiry into possible juror bias. Here, the trial court directly questioned the juror during a period spanning two days, allowing the juror to consider the instructions overnight. Slip Op. at ¶30. Additionally, the trial court permitted arguments from counsel on both days of questioning the juror. The Court of Appeals found the trial court did not abuse its discretion in refusing to reopen voir dire in these circumstances. 

The Court of Appeals did find error when the trial court ordered Defendant A to enroll and complete co-parenting classes while the appeal in this matter was pending. Slip Op. at ¶34. Under N.C.G.S. § 15A-1451(a)(4), a defendant’s notice of appeal stays probation, meaning trial court’s imposition of the co-parenting condition was error. As a result, the court remanded for resentencing Defendant A only. 

(1) On discretionary review of a unanimous, unpublished decision of the Court of Appeals in this sexual exploitation of a minor case, the court held that although statements in the prosecutor’s final jury argument were improper, they were not prejudicial. The defendant claimed that the images at issue depicting his penis near the child’s mouth did not show actual conduct and instead had been digitally manipulated to depict the conduct. In closing argument to the jury, the prosecutor argued that the crime of sexual exploitation of a minor could occur if the image was altered or manipulated to show a person engaged in a sexual act with a child. The prosecutor argued that the child does not have to actually be involved in the sexual act itself. The defendant was convicted and he appealed. The court held that the prosecutor’s argument was improper. According to the plain language of the statute, the minor is required to have engaged in sexual activity. When the minor depicted in an image appears to have been shown as engaged in sexual activity as a result of digital manipulation, the defendant has not committed the offense of first-degree sexual exploitation of a minor. Thus, the prosecutor’s argument misstated the applicable law. However, the court went on to hold that although the trial court erred by sustaining the defendant’s objection to the challenge argument, the error did not justify a new trial. It reasoned that when, as here, a misstatement of the law during jury argument is cured by correct jury instructions, no prejudice occurs. Here, the trial court’s instructions to the jury explicitly stated that to find the defendant guilty the jury had to find that the defendant used, induced, coerced, encouraged or facilitated the child victim’s involvement in sexual activity.

(2) In this first-degree sexual exploitation of a minor case, the trial court did not err by denying the defendant’s request that the jury be instructed that the “oral intercourse” element of the offense requires penetration. The court determined that whether the term “oral intercourse” as used in the statute proscribing this crime requires penetration presents an issue of first impression. The court concluded that the General Assembly intended the relevant statutory language to be construed broadly to provide minors with the maximum reasonably available protection from sexual exploitation. The court went on to hold that the term “oral intercourse” was intended as a gender-neutral reference to cunnilingus and fellatio, neither of which require penetration. Thus, the trial court did not err by refusing to instruct the jury in accordance with the defendant’s request.

In this Guilford County case, defendant appealed his convictions for first-degree murder and possession of a firearm by a felon, arguing the trial court erred by (1) denying his motions to dismiss, (2) giving an improper jury instruction on deliberation, and (3) failing to give defendant’s requested “stand your ground” instruction. The Court of Appeals found no error.

In 2017, defendant was at a house drinking alcohol with two other men when an argument broke out between defendant and the eventual victim. The victim yelled in defendant’s face and spit on him, threatening to kill defendant the next time he saw him. Notably, the victim’s threat was to kill defendant at a later time, and the victim stated he would not do so in the house where they were drinking. After the victim yelled in defendant’s face, defendant drew a pistol and shot the victim six times; defendant fled the scene and did not turn himself in until 18 days later.

Reviewing the trial court’s denial of defendant’s motions to dismiss, the court noted that “evidence of a verbal altercation does not serve to negate a charge of first-degree murder when ‘there was other evidence sufficient to support the jury’s finding of both deliberation and premeditation.’” Slip Op. at 8, quoting State v. Watson, 338 N.C. 168, 178 (1994). The court found such evidence in the instant case, with defendant’s prior history of quarrels with the victim, the number of gunshots, defendant’s fleeing the scene and remaining on the run for 18 days, and with defendant’s statements to his girlfriend regarding his intention to deny the charges.

The court then turned to the disputed jury instructions, first explaining that defendant’s request for an additional explanation on deliberation beyond that contained in Pattern Jury Instruction 206.1 was based on a dissenting opinion in State v. Patterson, 288 N.C. 553 (1975) which carried no force of law, and the instruction given contained adequate explanation of the meaning of “deliberation” for first-degree murder. Slip Op. at 11. The court next considered the “stand your ground” instruction, comparing the trial court’s instruction on self-defense to the version offered by defendant. Looking to State v. Benner, 380 N.C. 621 (2022), the court found that “the use of deadly force cannot be excessive and must still be proportional even when the defendant has no duty to retreat and is entitled to stand his ground.” Slip Op. at 14. The court also noted that the “stand your ground” statute requires proportionality in defendant’s situation, explaining “[d]efendant could use deadly force against the victim under [N.C.G.S. §] 14-51.3(a) only if it was necessary to prevent imminent death or great bodily harm, i.e., if it was proportional.” Id. at 16-17. Finally, the court determined that even if the trial court erred in failing to give the instruction, it was not prejudicial, as overwhelming evidence in the record showed that defendant was not under threat of imminent harm, noting “[l]ethal force is not a proportional response to being spit on.” Id. at 17.

In this Buncombe County case, defendant appealed his conviction for first-degree murder, arguing five separate errors by the trial court and contending the cumulative prejudice of those errors entitled him to a new trial. The Court of Appeals found no error. 

In June of 2017, the victim was shot in the parking lot of an apartment complex in Asheville by a man in a black hoodie. At the time of the shooting, defendant was sixteen years of age. A witness from the scene later identified defendant as the man in the hoodie, picking his photograph out of a selection of potential subjects. The witness also gave a written statement of the events to detectives. Another witness, defendant’s cousin, also identified him as the shooter during a recorded interview with detectives. At trial, both witnesses were called to testify. Defendant’s cousin testified she was unable to recall the events around the shooting, and the prosecutor moved to have the recording of her interview played for the jury under Rule of Evidence 803(5). Over defense counsel’s objection, the trial court permitted playing the video. The detectives also testified regarding the interviews of both witnesses. Defendant was subsequently convicted and appealed. 

Defendant argued the first error was a failure to instruct the jury on the lesser-included offense of second-degree murder. The Court of Appeals disagreed, explaining that the prosecution had proven each element of first-degree murder, and no evidence was admitted negating any element. Walking through defendant’s points, the court noted (1) despite defendant’s claim that he used marijuana earlier in the day of the shooting, voluntary intoxication only negated specific intent if the defendant was intoxicated at the time the crime was committed; (2) no case law supported the argument that defendant’s age (16 years old) negated the elements of first-degree murder; (3) provocation by a third party could not excuse defendant’s actions towards the victim; and (4) defendant’s statement to a witness that he was “angry” at the victim but only intended to fight him did not prevent a finding of premeditation and deliberation where no evidence was admitted to show his anger reached a level “such as to disturb the faculties and reason.” Slip Op. at 19. 

The second error alleged by defendant was a special jury instruction requested by defense counsel on intent, premeditation, and deliberation for adolescents. The court explained that while defense counsel’s requested instruction might be supported by scientific research, no evidence was admitted on adolescent brain function, and “[d]efendant’s age is not considered nor contemplated in the analysis of premeditation and deliberation, therefore, this instruction would be incorrect and likely to mislead the jury.” Id. at 22. 

The third alleged error was playing the interview video and introducing the photo lineup identification provided by defendant’s cousin. Defendant argued she did not testify the events were fresh in her mind at the time of the recording, and the interview and lineup did not correctly reflect her knowledge of the shooting. The court disagreed with both arguments, explaining that the trial court found the recording was made two days after the shooting and concluded it was fresh in her memory. The court also explained that the witness did not disavow her statements, and provided a signature and initials on identification paperwork, justifying a finding that her testimony and identification were correct. Defendant also argued that admitting the interview and identification were improper under Rule of Evidence 403. The court disagreed, explaining that the interview was highly probative of defendant’s motive, outweighing the danger of unfair prejudice. 

Considering the fourth alleged error, that the identification evidence from the first witness was tainted by impermissibly suggestive interview techniques by the detectives, the court noted that defendant did not present arguments as to why the procedures were unnecessarily suggestive. Although defendant did not properly argue the first step of the two-step determination process for impermissibly suggestive techniques, the court addressed the second step of the analysis anyway, applying the five-factor test from State v. Grimes, 309 N.C. 606 (1983), to determine there was no error in admitting the witness’s identification of defendant. Slip Op. at 31. 

Finally, the court considered defendant’s argument that it was error to permit the detectives to offer improper lay opinions about the witnesses’ “forthcoming” and “unequivocal” participation in identifying defendant. Id. at 32. Defendant failed to object at trial, so the court applied a plain error standard to the review. The court did not believe that the statements were comments on the witnesses’ credibility, but even assuming that admission was error, the court concluded that admission was not plain error due to the other evidence of guilt in the record. Because the court found no error in any of the five preceding arguments, the court found no cumulative prejudice justifying a new trial. 

Judge Murphy concurred, but concurred in result only for Parts II-E (Detective’s Statements) and II-F (Cumulative Prejudice). Id. at 35. 

In this Buncombe County case, defendant appealed his conviction for first-degree murder, arguing five separate errors by the trial court and contending the cumulative prejudice of those errors entitled him to a new trial. The Court of Appeals found no error. 

In June of 2017, the victim was shot in the parking lot of an apartment complex in Asheville by a man in a black hoodie. At the time of the shooting, defendant was sixteen years of age. A witness from the scene later identified defendant as the man in the hoodie, picking his photograph out of a selection of potential subjects. The witness also gave a written statement of the events to detectives. Another witness, defendant’s cousin, also identified him as the shooter during a recorded interview with detectives. At trial, both witnesses were called to testify. Defendant’s cousin testified she was unable to recall the events around the shooting, and the prosecutor moved to have the recording of her interview played for the jury under Rule of Evidence 803(5). Over defense counsel’s objection, the trial court permitted playing the video. The detectives also testified regarding the interviews of both witnesses. Defendant was subsequently convicted and appealed. 

Defendant argued the first error was a failure to instruct the jury on the lesser-included offense of second-degree murder. The Court of Appeals disagreed, explaining that the prosecution had proven each element of first-degree murder, and no evidence was admitted negating any element. Walking through defendant’s points, the court noted (1) despite defendant’s claim that he used marijuana earlier in the day of the shooting, voluntary intoxication only negated specific intent if the defendant was intoxicated at the time the crime was committed; (2) no case law supported the argument that defendant’s age (16 years old) negated the elements of first-degree murder; (3) provocation by a third party could not excuse defendant’s actions towards the victim; and (4) defendant’s statement to a witness that he was “angry” at the victim but only intended to fight him did not prevent a finding of premeditation and deliberation where no evidence was admitted to show his anger reached a level “such as to disturb the faculties and reason.” Slip Op. at 19. 

The second error alleged by defendant was a special jury instruction requested by defense counsel on intent, premeditation, and deliberation for adolescents. The court explained that while defense counsel’s requested instruction might be supported by scientific research, no evidence was admitted on adolescent brain function, and “[d]efendant’s age is not considered nor contemplated in the analysis of premeditation and deliberation, therefore, this instruction would be incorrect and likely to mislead the jury.” Id. at 22. 

The third alleged error was playing the interview video and introducing the photo lineup identification provided by defendant’s cousin. Defendant argued she did not testify the events were fresh in her mind at the time of the recording, and the interview and lineup did not correctly reflect her knowledge of the shooting. The court disagreed with both arguments, explaining that the trial court found the recording was made two days after the shooting and concluded it was fresh in her memory. The court also explained that the witness did not disavow her statements, and provided a signature and initials on identification paperwork, justifying a finding that her testimony and identification were correct. Defendant also argued that admitting the interview and identification were improper under Rule of Evidence 403. The court disagreed, explaining that the interview was highly probative of defendant’s motive, outweighing the danger of unfair prejudice. 

Considering the fourth alleged error, that the identification evidence from the first witness was tainted by impermissibly suggestive interview techniques by the detectives, the court noted that defendant did not present arguments as to why the procedures were unnecessarily suggestive. Although defendant did not properly argue the first step of the two-step determination process for impermissibly suggestive techniques, the court addressed the second step of the analysis anyway, applying the five-factor test from State v. Grimes, 309 N.C. 606 (1983), to determine there was no error in admitting the witness’s identification of defendant. Slip Op. at 31. 

Finally, the court considered defendant’s argument that it was error to permit the detectives to offer improper lay opinions about the witnesses’ “forthcoming” and “unequivocal” participation in identifying defendant. Id. at 32. Defendant failed to object at trial, so the court applied a plain error standard to the review. The court did not believe that the statements were comments on the witnesses’ credibility, but even assuming that admission was error, the court concluded that admission was not plain error due to the other evidence of guilt in the record. Because the court found no error in any of the five preceding arguments, the court found no cumulative prejudice justifying a new trial. 

Judge Murphy concurred, but concurred in result only for Parts II-E (Detective’s Statements) and II-F (Cumulative Prejudice). Id. at 35. 

In this Durham County case, defendant appealed his convictions for first-degree kidnapping, three counts of assault, and interfering with emergency communications, arguing (1) he was prejudiced by not receiving a pretrial release hearing under G.S. 15A-534.1, (2) double jeopardy for his multiple assault convictions, (3) his conviction for assault by strangulation was improper, and (4) insufficient evidence to support his kidnapping conviction. The Court of Appeals found no prejudicial error.

In January of 2020, defendant and a woman he was living with began arguing, culminating in defendant headbutting the woman several times. Eventually defendant began beating the woman and dragged her by her hair, then throwing her and choking her in the bedroom. The woman eventually hid her child in a closet and jumped out of a window on the third-floor to escape defendant. The woman’s mother attempted to intervene but defendant struck her in the mouth, busting the mother’s lip. Defendant also took the mother’s phone and threw it away, but she retrieved it to call police. After defendant was arrested, the magistrate did not set bond on his kidnapping charge, determining it to be a domestic violence act, and ordered the State to produce defendant for a hearing on conditions of pretrial release. The State did not comply with this order, and defendant remained in custody, not posing bond on any of the charges. After remaining in custody from March to September of 2020, defendant filed a motion to dismiss his kidnapping charge, arguing G.S. 15A-534.1 required dismissal. Defendant’s charges were consolidated the next day with pretrial release conditions and a bond of $250,000; defendant did not post bond and remained in custody. The trial court also denied defendant’s motion to dismiss. Defendant reached trial in November 2021, and was convicted after a bench trial, receiving credit for time served. 

Considering (1), the Court of Appeals noted that the State admitted it did not hold the pretrial release hearing but explained the failure as inadvertent due to the onset of COVID-19. Analyzing the impact, the court explained “[t]he inadvertence does not excuse the State; rather, it is relevant to show the absence of a flagrant constitutional violation.” Slip Op. at 11. The court also noted defendant did not post bond after his initial arrest, and “even if the State had held a timely pretrial release hearing on the kidnapping charge, Defendant would not have been released.” Id. at 11. As a result, defendant could not show irreparable prejudice to the preparation of his case. 

Next the court considered (2), as defendant argued the events constituted one long assault. The court disagreed, explaining there was an “interruption in the momentum” and “a change in location” between the events of the three assaults. Id. at 14-15. The court held each offense was separate and distinct, and found no merit in defendant’s argument. The court applied the same analysis for (3), pointing to “a distinct interruption in the assaults” to justify defendant’s convictions for assault inflicting serious bodily injury as well as assault by strangulation. Id. at 16. 

Finally, the court took up (4), noting that defendant’s acts of confining and removing the victim represented separate and distinct acts from the underlying assaults, justifying the kidnapping charge. The court explained that “Defendant’s confinement of [the victim] by pulling her by the hair back into the bedroom, confining her in there by kicking at the locked door, and forcing her to escape by jumping from the third floor window, were separate, complete acts apart from Defendant’s other assaults upon her.” Id. at 19. 

In this Wake County case, defendant appealed on several grounds after being convicted of violating the provisions of the sex offender registry and attaining habitual felon status. In 2015 defendant was residing at a homeless shelter in Raleigh, but in July of 2015 he was taken to a drug treatment program in Goldsboro. Defendant left the program after only two days, but did not update the address where he was residing with the local sheriff. Defendant was arrested in August of 2015, and indicted for violating the requirements of the sex offender registry.

At trial, defendant made motions to dismiss based in the indictment being defective and for insufficiency of the evidence presented. These motions were denied. During sentencing, the trial court did not allow defendant to get his papers in order to make a statement to the court; after a back-and-forth exchange, the court moved on without allowing defendant to make a statement. The trial court imposed a sentence in September of 2019, and defendant appealed.

Defendant argued that (1) the indictment failed to allege three essential elements of the sex offender registry violation; (2) the trial court erred by failing to instruct the jury as to an element of the offense and misstated an element of the defense; (3) the trial court improperly denied defendant’s motion to dismiss for lack of substantial evidence; (4) the trial court deprived defendant of his right to allocution; and (5) the trial court erred by ordering defendant to pay attorney fees.

The Court of Appeals examined issue (1) of the appeal by defining the three essential elements of the violation: (a) that defendant is a person who must register; (b) that defendant has changed addresses; and (c) that defendant failed to notify the last registering sheriff of the change within three business days. The court concluded that while the indictment could have been more explicit and precise, it was sufficient to support the trial court’s jurisdiction and was not subject to hyper-technical scrutiny.

Taking up issue (2) of the appeal, the court examined the jury instructions contested by defendant. In particular, the Court of Appeals reviewed the instructions regarding (a) whether they adequately put the burden of proof on the State to prove that defendant changed his address, and (b) whether they adequately directed the jury to determine whether the defendant willfully failed to report his change of address (rather than simply that he willfully changed his address). Regarding (a), the court found that the instructions were clear and showed that the standard was beyond a reasonable doubt through repeated portions of the instructions given to the jury. Considering (b), the court examined the language “willfully changed defendant’s address and failed to provide written notice of defendant’s new address” from the instruction given to the jury. When examined with the surrounding language of the instructions that more clearly connected the willfulness requirement with the failure to report, the Court of Appeals found that this language, even if erroneous, did not constitute error because it was not sufficiently prejudicial when considered with the entirety of the instruction.

When considering the existence of substantial evidence for issue (3), the court found testimony in the record showing defendant’s awareness of his obligation to update his address. Additionally, evidence in the record showed that defendant left the drug treatment facility after only two days, and did not return to his registered address, supporting willful failure to update his address with the sheriff. The court also examined the evidence supporting the felonies used to justify habitual felon status, and found sufficient evidence showing the felonies did not overlap and were all committed after defendant turned 18 years old.  

The Court of Appeals found that defendant’s issue (4) had merit; the trial court did not adequately allow defendant to address the court and deprived him of his right to allocution. During the exchange with the trial court, defendant repeatedly asked to get his papers. The trial court refused to allow this, but did not provide an opportunity for defendant to speak after the third time defendant referenced needing his papers. Because defendant was not clearly told he could speak without his papers, and the court did not inquire about defendant’s desire to speak without them, the trial court effectively refused to allow defendant to make a statement. Based upon this failure, the court vacated defendant’s sentence and remanded to the trial court for a new sentencing hearing.

Finally, the court denied the petition underlying issue (5), regarding the judgment for attorney fees, as no civil judgment was entered against defendant. An order for attorney fees appears in the record, but it does not appear to be filed with the Wake County Clerk of Court. As a result, the court dismissed this portion of defendant’s appeal.

(1) In this Franklin County case, the defendant was convicted of felony larceny pursuant to a breaking or entering, felony larceny of a firearm, firearm by felon, fleeing to elude, and armed robbery. The larceny pursuant to breaking or entering and larceny of a firearm occurred at the same time as a part of a continuous transaction and could not support separate convictions. Under the single taking rule, “a single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place.” Posner Slip op. at 4. The State conceded this error, and the court remanded the for judgment to be arrested on one of the larceny counts. [Brittany Williams recently blogged about the single taking rule here.]

(2) The defendant also challenged the trial court’s calculation of his prior record level. The trial court included a point based on a prior 2012 conviction for possession of drug paraphernalia. When determining record level points, prior convictions are classified by the law in effect at the time the present offense was committed. In 2014, the legislature created the class 3 misdemeanor offense of possession of marijuana paraphernalia. The State conceded that the defendant’s paraphernalia 2012 conviction was for marijuana paraphernalia. The conviction therefore should not have counted under current law and the trial court erred in including this point.

The trial court also erred in part in assigning the defendant an additional record level point for having been previously convicted of offenses with “all of the elements of the present offense.” G.S. 15A-1340.14(b)(6). This point applied to the defendant based on his prior convictions for possession of firearm by felon and felony breaking and entering. The defendant had not previously been convicted of larceny of a firearm, fleeing to elude arrest, or armed robbery, however, and it was error to assign this record level point in the judgments for those offenses. Both errors were prejudicial, as they raised the defendant’s prior record level from a level IV to a level V. The matter was therefore remanded for resentencing as well.

In this sex offense with a child case, the trial court did not err by prohibiting the defendant from introducing evidence of the immigration status of the victim’s mother, a testifying witness, on the basis that the evidence was irrelevant under Rule 401.  The mother’s immigration status did not have any tendency to make the existence of a fact of consequence to the determination of the action more probable or less probable.  Further, the trial court did not err by overruling the defendant’s objection to the mother testifying that the defendant had refused to be tested for herpes after it was discovered that the child victim had herpes.  This testimony was not unfairly prejudicial under Rule 403.  Finally, the trial court did not err by denying the defendant’s motion to dismiss a charge of first degree statutory sexual offense for insufficient evidence.  The victim testified that the defendant touched her with his fingers “in the inside” in “the place where [she] go[es] pee,” and this testimony was sufficient evidence of a sexual act for purposes of the offense.

Judge Murphy concurred in the result only, writing a separate opinion to discuss when a witness’s immigration status and knowledge of U-Visas may be relevant for cross-examination, as well as other issues in the case.

In this Carteret County case, defendant appealed his conviction for first-degree murder, arguing (1) insufficient evidence, (2) error in admitting numerous gruesome photos of the body, and (3) error in allowing several statements by the prosecutor during closing argument. The Court of Appeals found no prejudicial error. 

At trial, defendant admitted through counsel that he shot the victim, the mother of his son, on August 14, 2018. Evidence showed that earlier that day, the two were seen fighting in the front yard of their residence, and later the victim was seen walking down the road. Defendant eventually picked up the victim and brought her back to their home. Sometime after the victim and defendant were back home, defendant shot and killed the victim, wrapped her in a tarp, then buried her body at a burn pit in his grandfather’s back yard. Defendant also called the victim’s mother, who lived with them, to tell her juice had been spilled on her sheets and he had to launder them. After burying the victim, defendant told others that the victim had left him, and put up flyers trying to find her. Eventually defendant was charged with the murder; while in custody, he had conversations with another inmate about how he “snapped” and shot the victim after she described performing sex acts with other men, and where he hid the body. 

Taking up (1), the Court of Appeals explained that the State argued first-degree murder under two theories, premeditation and deliberation, and lying in wait. The court looked for sufficient evidence to support premeditation and deliberation first, noting that defendant’s actions before and after the murder were relevant. Although defendant and the victim fought before the killing, the court did not find evidence to support the idea that defendant was acting under “violent passion,” and defendant seemed to deliberately choose a small-caliber handgun that was not his usual weapon for the murder. Slip Op. at 10-11. Additionally, the court concluded that “Defendant’s actions following the murder demonstrate a planned strategy to pretend Defendant had nothing to do with the murder and to avoid detection as the perpetrator.” Id. at 12. The court dispensed with defendant’s argument that it should not consider acts after the killing as evidence of premeditation, explaining the case cited by defendant, State v. Steele, 190 N.C. 506 (1925), “holds flight, and flight alone, is not evidence of premeditation and deliberation.” Slip Op. at 14. Because the court found sufficient evidence to support first-degree murder under premeditation and deliberation, it did not examine the lying in wait theory. 

Turning to (2), the court explained that under Rule of Evidence 403, photos of a body and its location when found are competent evidence, but when repetitive, gruesome and gory photos are presented to the jury simply to arouse the passion of the jury, they may have a prejudicial effect, such as in State v. Hennis, 323 N.C. 279 (1988). Here, the court did not find prejudice from the photographs, as “[t]he photographs presented at trial depicted the culmination of the investigation to locate [the victim’s] body and provided evidence of premeditation and deliberation.” Slip Op. at 20. 

The court found error in (3), but not prejudicial error, when examining the prosecutor’s closing argument. First, the prosecutor mentioned the punishment for second-degree murder; the trial court sustained defendant’s objection but did not give a curative instruction. The court found no prejudice as previous instructions directed the jury to disregard questions to sustained objections, and not to acquit or convict based on the severity of punishment. Second, the prosecutor mentioned that defendant did not have to testify; the trial court initially sustained the objection but then overruled it to allow the prosecutor to make an argument about defendant not calling witnesses. The court found that this error was harmless beyond a reasonable doubt due to “the evidence of Defendant’s motive for planning to kill [the victim], his confession, his use of the .22 caliber handgun, and his acts subsequent to the killing.” Id. at 25. Third, while the prosecutor misstated the applicable precedent regarding provocation, the court explained that a proper instruction by the trial court to the jury on “the required state of mind for premeditation and deliberation” cured the misstatement. Id. at 27. Finally, the court concluded that the prosecutor’s statements referencing defendant’s admission that he killed the victim were “directed at what was and was not at issue for the jurors to decide rather than an improper statement regarding Defendant’s failure to plead guilty.” Id. at 28. 

The basic facts of this case are as follows: Marvin Price closed his account at the Mountain Credit Union, withdrawing $25,000 in cash. He put $300 to $400 in his wallet and the remainder in an envelope. When he arrived home and got out of his car, he was robbed at gunpoint by Michael Angram, who asked Price, “Where is the $25,000?” Price claimed that he deposited it at another bank, although he had not actually done so, and Michael Angram took the wallet only. In a separate case, Michael Angram was convicted of robbery with a dangerous weapon. The defendant in this case is Michael Angram’s brother. He was tried jointly with Ms. Robinson, who worked at the credit union and with whom the defendant had a child, on charges of conspiracy to commit robbery with a dangerous weapon and aiding and abetting robbery with a dangerous weapon. They were acquitted of conspiracy and found guilty of aiding and abetting. This appeal concerned the defendant only.

The question addressed by the Court of Appeals was whether the State offered sufficient evidence to withstand the defendant’s motion to dismiss, which the trial judge had denied. At trial, the State called Michael Angram, who testified that he did not remember the robbery and did not know why he had been convicted. He did not testify to anything incriminating about the defendant. The State then called a detective to impeach Michael Angram. The detective testified that Michael Angram said that the defendant told him about the $25,000 bank withdrawal and drove him to Price’s home. The Court of Appeals recognized that the detective’s testimony was limited to impeaching Michael Angram’s credibility. The only substantive evidence offered by the State was that Ms. Robinson had a relationship with the defendant, that she was working at the credit union along with three other employees when Price withdrew the $25,000, and that she talked on the phone with the defendant while Price was at the credit union. The State argued that the jury could infer from this evidence that Ms. Robinson told the defendant of the withdrawal and that the defendant then arranged with his brother to rob Price. The Court found that while circumstantial evidence may support conviction of a crime, the State’s argument was speculative. The Court concluded that without the information from the detective’s testimony, which was not admitted for substantive purposes, there was not substantial evidence to withstand the defendant’s motion to dismiss. The Court concluded that the trial judge should have granted the defendant’s motion and reversed the judgment. [Note: The Court found it unnecessary to address the defendant’s other issue on appeal—that the trial judge erred in permitting the detective to testify about Michael Angram’s statements because the State was aware that Michael Angram would not be forthcoming as a witness; the real purpose of the detective’s testimony was to get otherwise inadmissible hearsay before the jury in violation of State v. Hunt, 324 N.C. 343 (1989); and the testimony was unduly prejudicial and not cured by the trial judge’s limiting instruction.]

The defendant was convicted of two counts of sexual offense with a child by an adult, rape of a child, first-degree kidnapping, and two counts of taking indecent liberties with a child in Wake County, stemming from the assault of a six-year-old child at a church.

(1) In regard to one of the indecent liberties convictions, the defendant argued that the State did not present sufficient evidence that the defendant acted inappropriately when touching the victim’s chest and that such evidence was only offered for corroborative purposes. The victim’s testimony discussing the touching of her chest was only presented by way of her videotaped forensic interview and was not raised in the victim’s trial testimony. The Court of Appeals disagreed, finding that the videotaped forensic interview of the victim “was properly admitted under Rule 803(4) as her statements were made for the purposes of medical diagnosis or treatment, and the statements were reasonably pertinent to diagnosis or treatment.” Slip op. at 8. Additionally, the trial court instructed the jury to consider the video as substantive evidence. The Court of Appeals therefore determined that “[t]he evidence was sufficient to support denial of the motion to dismiss the challenged charge of taking indecent liberties with a child.” Id.

The defendant also argued that there was insufficient evidence to support a finding that the defendant forcibly removed the victim to facilitate the offense, an essential element of the crime of kidnapping. Specifically, the defendant argues the evidence does not show that he used actual force, fraud, or trickery to remove the victim. The Court of Appeals rejected this argument as well, finding that the defendant’s act of taking the victim to a secluded place to continue the sexual assault was sufficient to support removal for purposes of kidnapping.

(2) Concerning the defendant’s convictions of first-degree kidnapping and sexual offense with a child, the defendant argued “that the trial court erred by instructing on first-degree kidnapping and by failing to instruct on sexual offense with a child by an adult.” Id. at 10. The Court of Appeals found no prejudicial error in the instruction given on first-degree kidnapping because “[t]he evidence at trial was consistent with the allegations in the indictment,” even though the language of the jury instruction varied from the indictment. Id. at 11. The kidnapping indictment stated that “[D]efendant also sexually assaulted [Maya]” while the jury was instructed “that the person was not released by the defendant in a safe place.” Id. at 11-12. The Court of Appeals noted that such variance is usually prejudicial error but determined that the evidence here supported both the theory of the indictment and that of the jury instructions. On plain error review, the court rejected the defendant’s argument and concluded “it is not probable that the jury would have reached a different result if given the correct instruction.” Id. at 12.

The defendant also argued that the trial court erred by entering judgment on sexual offense with a child by an adult after instructing the jury on first-degree sex offense, a lesser offense. The Court of Appeals agreed. Because “[t]he jury instruction clearly outlined the lesser included offense of first-degree sexual offense . . . it was improper for the trial court to enter judgment for two counts of sexual offense with a child.” Id. at 17. The trial court did not instruct on the essential element of age as to the sexual offense with a child by an adult charge. The defendant was therefore impermissibly sentenced beyond the presumptive range for the lesser included offense of conviction. The Court of Appeals determined this was prejudicial error and vacated the defendant’s conviction of sexual offense with a child by an adult, remanding for resentencing on the first-degree sexual offense charge.

(3) The defendant argued that the trial court erred in certain evidentiary rulings. First, the defendant alleged that expert testimony regarding the DNA profile from the victim’s underwear (matching to the defendant) should not have been admitted because there was an insufficient foundation to satisfy the requirements of Rule 702(a)(3) of the North Carolina Rules of Evidence. The Court of Appeals disagreed, finding that the witness was “a qualified expert in the field of forensics and an employee at the North Carolina State Crime Lab, [who] testified to her qualifications in the area of DNA analysis as well as her training and experience in gathering evidence for DNA profiles.” Slip op. at 19. Further, the Court explained:

[The witness] thoroughly explained the methods and procedures of performing autosomal testing and analyzed defendant’s DNA sample following those procedures. That particular method of testing has been accepted as valid within the scientific community and is a standard practice within the state crime lab. Thus, her testimony was sufficient to satisfy Rule 702(a)(3). Id. at 21.

The defendant also argued that it was plain error to allow prior bad acts evidence under Rule 404(b) of the North Carolina Rules of Evidence, claiming that the prior incident was unrelated to the current offense. The Court of Appeals determined that the trial court did not err because the facts in both cases were similar enough to be admitted for 404(b) purposes. The trial court’s findings that “both females were strangers to defendant; they were separated from a group and taken to a more secluded location; they were touched improperly beginning with the buttocks; and they were told to be quiet during the assault,” supported the admission of this evidence under Rule 404(b). Id. at 23.

(4) Finally, the defendant argued that the trial court erred by allowing cross-examination of his father and contends the State elicited irrelevant testimony from his father. Specifically, the defendant objected to the admission of questions and testimony about whether the defendant’s father warned members of the church about the defendant’s potential dangerousness. The Court of Appeals rejected this argument and determined “the questions on cross-examination elicited relevant testimony and were well within the scope of defendant’s father’s direct testimony that defendant needed frequent supervision for basic activities.” Id. at 27-28.

Judge Murphy authored a separate opinion concurring in part, concurring in result only in part, and dissenting in part. Concerning the sexual offense jury instruction, Judge Murphy believed “the trial court erred in instructing the jury, however, since the jury found beyond a reasonable doubt Defendant was at least 18 years old in another portion of its verdict and all the charges against Defendant occurred on the same date, there was no plain error.” Slip op. at 5 (Murphy, J., dissenting). Judge Murphy also pointed out that “[h]ad the jury been correctly instructed on the first-degree kidnapping indictment language and found Defendant guilty of first-degree kidnapping based on sexual assault the trial court could not have sentenced Defendant for all the sexual offenses and the first-degree kidnapping offense without violating double jeopardy.” Id. at 13. Following the guidance of State v. Stinson, 127 N.C. App. 252, Judge Murphy believed that the court should have arrested judgment on the first-degree kidnapping conviction and remanded for resentencing on second-degree kidnapping to avoid double jeopardy issues. Lastly, Judge Murphy did not believe the defendant preserved the issue of his father’s testimony for review and would have refused to consider that argument.

In a case involving a conviction for second-degree murder following a fatal motor vehicle accident, the trial court did not abuse its discretion by admitting evidence of the defendant’s past driving offenses. The State’s evidence showed that on 23 November 2016, the defendant was stopped for an expired plate and was issued a citation for driving with a suspended license. At the time of the incident in question, the defendant’s license had been suspended since 22 May 2014 for failure to appear for a 2013 infraction of failure to reduce speed. Since the defendant’s driver’s license was originally issued in September 1997, he had multiple driving convictions including: failure to stop for siren or red light, illegal passing, speeding 80 in a 50, and reckless driving in March 1998; speeding 64 in a 55 in September 2000; speeding 64 in a 55 in October 2000; speeding 70 in a 50 in August 2003; driving while license revoked and speeding 54 in a 45 in January 2005; speeding 54 in a 45 in December 2006; failure to reduce speed resulting in accident and injury in February 2007; a South Carolina conviction for speeding 34 in a 25 in March 2011; speeding 44 in a 35 in January 2012; speeding 84 in a 65 in May 2013; and failure to reduce speed in February 2017 (the conviction corresponding to the 2013 charge on which the defendant failed to appear). Six of these prior convictions resulted in suspension of the defendant’s license. On appeal the defendant argued that the trial court erred by admitting his prior driving record without sufficient evidence establishing temporal proximity and factual similarity. The court disagreed. It found that there was no question that his prior driving record was admissible to show malice. It further held that the trial court’s finding of similarity was supported by the fact that the vast majority of prior charges involve the same types of conduct that the defendant was alleged to have committed in the present case—namely speeding, illegal passing, and driving while license revoked. Although the State did not present evidence of the specific circumstances surrounding the prior convictions, the similarity was evident from the nature of the charges.

            The trial court’s finding of temporal proximity was supported by the spread of convictions over the entirety of the defendant’s record, from the year his license was issued up until the year of the accident in question, showing a consistent pattern of conduct including speeding, illegal passing, and driving with a revoked license. The gaps in time between charges, never greater than three or four years, were not significant. Moreover, many of the gaps between charges occurred when the defendant’s license was suspended and he could not legally drive. The trial court properly determined that the time gaps in this pattern of conduct were less significant in light of the likely causes for the gaps, the defendant’s inability to legally drive. Additionally, the trial court properly gave a limiting instruction

            The court further rejected the defendant’s argument that the evidence should have been excluded because of the 10 year time limit under evidence Rule 609. That rule however only applies to evidence used to impeach a witness’s credibility, which is not at issue here.

In this New Hanover County case, defendant appealed after being found guilty of two counts of first-degree murder and three counts of attempted first-degree murder, arguing (1) the indictment for attempted first-degree murder failed to include an essential element of the offense, (2) error in denying his motion to dismiss one of the attempted murder charges, and (3) error in admitting evidence of past acts of violence and abuse against two former romantic partners. The Court of Appeals found no error.

In August of 2014, after defendant assaulted his girlfriend, a protective order was granted against him. On December 22, 2014, defendant tried to reconcile with his girlfriend, but she refused; the girlfriend went to the house of a friend and stayed with her for protection. Early the next morning, defendant tried to obtain a gun from an acquaintance, and when that failed, he purchased a gas can and filled it with gas. Using the gas can, defendant set fires at the front entrance and back door of the home where his girlfriend was staying. Five people were inside when defendant set the fires, and two were killed by the effects of the flames. Defendant was indicted for first-degree arson, two counts of first-degree murder, and three counts of attempted first-degree murder, and was convicted on all counts (the trial court arrested judgment on the arson charge).

Examining issue (1), the Court of Appeals explained that “with malice aforethought” was represented in the indictment by “the specific facts from which malice is shown, by ‘unlawfully, willfully, and feloniously . . . setting the residence occupied by the victim(s) on fire.’” Slip Op. at 10. Because the ultimate facts constituting each element of attempted first-degree murder were present in the indictment, the lack of “with malice” language did not render the indictment flawed.

Considering defendant’s argument (2), that he did not have specific intent to kill one of the victims because she was a family member visiting from Raleigh, the court found that the doctrine of transferred intent supported his conviction. Under the doctrine, “[t]he actor’s conduct toward the victim is ‘interpreted with reference to his intent and conduct towards his adversary[,]’ and criminal liability for the third party’s death is determined ‘as [if] the fatal act had caused the death of [the intended victim].’” Id. at 12, quoting State v. Locklear, 331 N.C. 239 (1992). Here defendant was attempting to kill his girlfriend, and the intent transferred to the other victims inside the home at the time he set the fires.

Considering (3) the admission of several prior acts of violence by defendant towards his girlfriend and another romantic partner, the court first determined the evidence was relevant under Rules of Evidence 401 and 402, and conducted an analysis under Rule 404(b), finding the evidence tended to show intent, motive, malice, premeditation, and deliberation. The court then looked for abuse of discretion by the trial court under the Rule 403 standard, finding that the admission of the relevant evidence did not represent error.

In this Wake County case, defendant appealed his conviction for involuntary manslaughter, arguing error in the admission of evidence related to defendant’s prior acts of discipline under Rules 403 and 404(b). The Court of Appeals found no error.

In 2019, defendant lived with his then-girlfriend and her five children in Raleigh. In February, they had a dispute over discipline that led to the end of their relationship, and an agreement that defendant would move out and return to Maryland. However, just before defendant was to leave, his girlfriend had a job interview that required her to leave the home for several hours. Defendant was left watching her three youngest children. While she was gone, the youngest child suffered injuries leading to a 911 call. Defendant told paramedics that the child choked on a waffle, but a CT scan at the hospital revealed a skull fracture and hematomas on both sides of the child’s brain, with no sign of obstruction in the airway. Defendant was charged with involuntary manslaughter. At trial, the state moved to admit evidence of three previous episodes of defendant disciplining the children, two of which involved the defendant striking a child. The trial court admitted this evidence over defendant’s objection.

Reviewing defendant’s objection to the evidence, the Court of Appeals found no abuse of discretion in the trial court’s decision to admit the evidence under Rules 403 and 404(b). Because defendant did not dispute the findings of fact or conclusions of law on the motion, the issue on appeal was the Rule 403 analysis of whether the danger of unfair prejudice substantially outweighed the probative value of the three episodes. Defendant first argued that the probative value of the three episodes was minimal, although the trial court determined that two of the episodes involved him “striking” the children and the third was “indicative of a temper,” and the events were “probative of the intent . . .the motive . . . the absence of mistake or accident, and malice.” Slip Op. at 6-7. The court found that the trial court handled the unfair prejudice Rule 403 balancing test appropriately. Despite defendant’s arguments about the prejudicial nature of the evidence and the “verbs chosen” by his girlfriend when recounting his behavior toward her children, the court concluded that “the danger of unfair prejudice did not substantially outweigh the probative value of the evidence” under Rule 403. Id. at 8.

The defendant in this Davidson County case was tried for common law robbery, habitual misdemeanor assault, and habitual felon. The charges stemmed from an incident between the defendant and his then-girlfriend at her residence, resulting in him assaulting her, damaging her car, and ultimately taking her car after she fled inside the home. The defendant had recently purchased the car for the woman and had been reimbursed by her family for its value, and this was apparently part of the argument. At trial, evidence was also presented that the defendant provided the victim heroin during their relationship. The defendant was convicted on all counts and appealed.

(1) The defendant argued there was insufficient evidence that he used force to take the car or that he took property from the victim’s presence. The court rejected the arguments, observing that “even when there is some attenuation between the use of force and the taking, the action can still amount to a continuous transaction.” Slip op. at 7. Here, the defendant’s acts of assaulting the victim and stealing her car occurred within a 20-minute time period in the victim’s front yard, and evidence showed that the argument and assault were related to the car. Viewed in the light most favorable to the State, the victim fled in response to the defendant’s assault, and the defendant took her car immediately afterwards. This was sufficient to show a continuous transaction linking the defendant’s use of force to the taking of property. The same facts showed that the taking occurred “in the presence of” the victim. In the words of the court:

If the force . . . for the purpose of taking personal property has been used and caused the victim in possession or control to flee the premises and this is followed by the taking of the property in one continuous course of conduct, the taking is from the “presence” of the victim.” Id. at 8 (citation omitted).

The trial court did not therefore err in denying the motion to dismiss the common law robbery charge for insufficient evidence.

(2) The defendant argued that the testimony about him giving the victim heroin during their relationship was unduly prejudicial and violated N.C. Evid. R. 404(b). Assuming without deciding that the admission of this testimony violated Rule 404(b), any error was harmless in light of “overwhelming evidence” of the defendant’s guilt.

(3) The trial court erred by failing to give the defendant notice and an opportunity to be heard on attorney fees. The record contained no colloquy between the trial judge and the defendant on the issue and no other evidence showed that the defendant was given a chance to be heard. Thus, the civil judgement on attorney fees was vacated and the matter remanded for hearing on that issue only. The convictions were otherwise unanimously affirmed.

The defendant stole fuel injectors from a salvage yard. Among other issues: (1) The defendant’s indictment for larceny of motor vehicle parts in violation of G.S. 14-72.8 was insufficient. The statute requires that “the cost of repairing the motor vehicle is one thousand dollars . . . or more,” but the indictment alleged only that the total value of all the injectors taken from an unspecified number of vehicles was $10,500. The court of appeals construed the statute to require at least $1,000 in damage to a single motor vehicle. (2) A detective testified that he contacted an auto parts company in Maryland and learned that the defendant had sold the company 147 fuel injectors for nearly $10,000. This testimony was not hearsay as it was admitted “to describe [the detective’s] investigation,” not to prove that the defendant stole anything.

In this Buncombe County case, defendant appealed his conviction for first-degree murder, arguing five separate errors by the trial court and contending the cumulative prejudice of those errors entitled him to a new trial. The Court of Appeals found no error. 

In June of 2017, the victim was shot in the parking lot of an apartment complex in Asheville by a man in a black hoodie. At the time of the shooting, defendant was sixteen years of age. A witness from the scene later identified defendant as the man in the hoodie, picking his photograph out of a selection of potential subjects. The witness also gave a written statement of the events to detectives. Another witness, defendant’s cousin, also identified him as the shooter during a recorded interview with detectives. At trial, both witnesses were called to testify. Defendant’s cousin testified she was unable to recall the events around the shooting, and the prosecutor moved to have the recording of her interview played for the jury under Rule of Evidence 803(5). Over defense counsel’s objection, the trial court permitted playing the video. The detectives also testified regarding the interviews of both witnesses. Defendant was subsequently convicted and appealed. 

Defendant argued the first error was a failure to instruct the jury on the lesser-included offense of second-degree murder. The Court of Appeals disagreed, explaining that the prosecution had proven each element of first-degree murder, and no evidence was admitted negating any element. Walking through defendant’s points, the court noted (1) despite defendant’s claim that he used marijuana earlier in the day of the shooting, voluntary intoxication only negated specific intent if the defendant was intoxicated at the time the crime was committed; (2) no case law supported the argument that defendant’s age (16 years old) negated the elements of first-degree murder; (3) provocation by a third party could not excuse defendant’s actions towards the victim; and (4) defendant’s statement to a witness that he was “angry” at the victim but only intended to fight him did not prevent a finding of premeditation and deliberation where no evidence was admitted to show his anger reached a level “such as to disturb the faculties and reason.” Slip Op. at 19. 

The second error alleged by defendant was a special jury instruction requested by defense counsel on intent, premeditation, and deliberation for adolescents. The court explained that while defense counsel’s requested instruction might be supported by scientific research, no evidence was admitted on adolescent brain function, and “[d]efendant’s age is not considered nor contemplated in the analysis of premeditation and deliberation, therefore, this instruction would be incorrect and likely to mislead the jury.” Id. at 22. 

The third alleged error was playing the interview video and introducing the photo lineup identification provided by defendant’s cousin. Defendant argued she did not testify the events were fresh in her mind at the time of the recording, and the interview and lineup did not correctly reflect her knowledge of the shooting. The court disagreed with both arguments, explaining that the trial court found the recording was made two days after the shooting and concluded it was fresh in her memory. The court also explained that the witness did not disavow her statements, and provided a signature and initials on identification paperwork, justifying a finding that her testimony and identification were correct. Defendant also argued that admitting the interview and identification were improper under Rule of Evidence 403. The court disagreed, explaining that the interview was highly probative of defendant’s motive, outweighing the danger of unfair prejudice. 

Considering the fourth alleged error, that the identification evidence from the first witness was tainted by impermissibly suggestive interview techniques by the detectives, the court noted that defendant did not present arguments as to why the procedures were unnecessarily suggestive. Although defendant did not properly argue the first step of the two-step determination process for impermissibly suggestive techniques, the court addressed the second step of the analysis anyway, applying the five-factor test from State v. Grimes, 309 N.C. 606 (1983), to determine there was no error in admitting the witness’s identification of defendant. Slip Op. at 31. 

Finally, the court considered defendant’s argument that it was error to permit the detectives to offer improper lay opinions about the witnesses’ “forthcoming” and “unequivocal” participation in identifying defendant. Id. at 32. Defendant failed to object at trial, so the court applied a plain error standard to the review. The court did not believe that the statements were comments on the witnesses’ credibility, but even assuming that admission was error, the court concluded that admission was not plain error due to the other evidence of guilt in the record. Because the court found no error in any of the five preceding arguments, the court found no cumulative prejudice justifying a new trial. 

Judge Murphy concurred, but concurred in result only for Parts II-E (Detective’s Statements) and II-F (Cumulative Prejudice). Id. at 35. 

The defendant was convicted of two counts of sexual offense with a child by an adult, rape of a child, first-degree kidnapping, and two counts of taking indecent liberties with a child in Wake County, stemming from the assault of a six-year-old child at a church.

(1) In regard to one of the indecent liberties convictions, the defendant argued that the State did not present sufficient evidence that the defendant acted inappropriately when touching the victim’s chest and that such evidence was only offered for corroborative purposes. The victim’s testimony discussing the touching of her chest was only presented by way of her videotaped forensic interview and was not raised in the victim’s trial testimony. The Court of Appeals disagreed, finding that the videotaped forensic interview of the victim “was properly admitted under Rule 803(4) as her statements were made for the purposes of medical diagnosis or treatment, and the statements were reasonably pertinent to diagnosis or treatment.” Slip op. at 8. Additionally, the trial court instructed the jury to consider the video as substantive evidence. The Court of Appeals therefore determined that “[t]he evidence was sufficient to support denial of the motion to dismiss the challenged charge of taking indecent liberties with a child.” Id.