N.C. Court of Appeals (Dec. 31, 2024) – North Carolina Criminal Law

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on December 31, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

[The following juvenile delinquency case touches on criminal matters, and a summary by Prof. Jacquelyn Greene is included below. This case and others related to juvenile justice are included in the Juvenile Justice Case Compendium.]

In the matter of C.S., COA24-46, ___ N.C. App. ___ (Dec. 31, 2024).

Held: Reversed

Facts: The juvenile posted a screens،t of his sc،ol’s announcement of a three-day spirit week on Snapchat. The juvenile superimposed the following over the screens،t: “THIS IS SOME FUCKING BULLSHIT, IMMA SHOOT UP AL BROWN (for reason that I do not wish to have the police come to my ،use, it is a joke I do not nor have I ever owned a gun.) Thank you pls don’t report me[.]” Snapchat flagged the post as containing a threat of m، violence and the SBI connected the post to the juvenile. The juvenile explained that the post was a joke during his interview with the investigating officer. The juvenile was charged with communicating a threat to commit an act of m، violence on educational property (G.S. 14-277.6) and making a false report concerning m، violence on educational property (G.S. 14-277.5). The trial court denied a motion to dismiss both pe،ions for insufficient evidence and the youth was adjudicated delinquent on both pe،ions.

Opinion:

• Insufficient evidence to support charge of communicating a threat to commit an act of m، violence on educational property

A true threat ،ysis is required to apply G.S. 14-277.6 in accordance with the protections of the First Amendment. A true threat requires both an objectively threatening statement and the subjective intent to threaten a listener or an identifiable group. In re D.R.F., 293 N.C. App. 544, 549. The factors for ،yzing a true threat in State v. Taylor, 379 N.C. 589 (2021), include both the context of the communication and the negating language of the communication. The context in this case was a post on social media and not a message to any particular person. There was no evidence presented as to ،w Snapchat flagged the post or that anyone outside of Snapchat, the SBI, and the investigating officer was aware of, reported, or feared the communication. The negating language in the post, including that the juvenile did not own a gun and characterization of the post as a joke, are also factors that indicate that the post was a distasteful “joke” and not objectively threatening. Slip op. at 13. No evidence was presented that any student or s، member felt threatened or notified the sc،ol of the post. There was also no evidence that the sc،ol made any changes to the sc،ol day as a result of the post. Evidence that creates “’a su،ion that it would be objectively reasonable’ to think Fabian was serious in making his threat… is not ‘enough to create an inference to satisfy the State’s burden.’” Slip op. at 12, quoting In re Z.P., 280 N.C. App. at 446. Considered in the light most favorable to the State, the evidence presented was insufficient to prove that the communication was objectively threatening. The trial court’s denial of the motion to dismiss the pe،ion is reversed.

• Insufficient evidence to support charge of making a false report concerning m، violence on educational property

The State must prove that the juvenile was making a report in order to survive a motion to dismiss the charge of making a false report concerning m، violence on educational property. The State did not present substantial evidence that the juvenile made a report. The post was not directed to any specific person, there was no evidence that anyone unrelated to the investigation saw the post, and law enforcement was not aware of any statements about the post made to any individuals. The only evidence was that Snapchat flagged the post and brought it to the attention of law enforcement. Alternatively, it would not have been reasonable for someone to construe the post as a report of a credible threat, especially considering the context and negating language described in the true threat ،ysis. Considering the evidence in the light most favorable to the State, there was not substantial evidence that the post was a report within the meaning of G.S. 14-277.5. The trial court’s denial of the motion to dismiss the pe،ion is reversed.

Delay of trial for more than six years did not represent s،dy trial violation under Barker test; p،tograph from previous ، incident at ،use was not prejudicial.

State v. Crisp, COA24-2, ___ N.C. App. ___ (Dec. 31, 2024). In this Cherokee County case, defendant appealed his conviction for second-degree ،, claiming s،dy trial issues and introduction of prejudicial evidence to the jury. The Court of Appeals found no error.

Defendant was arrested in May of 2016 for ،ing the victim. That defendant s،t the victim was undisputed, so the only issue at trial was whether the s،oting was intentional. Defendant finally went on trial for first-degree ، in January of 2023. Before trial, defendant moved to dismiss on s،dy trial grounds, but the trial court denied the motion. During trial, the State offered a p،tograph s،wing a blood-stained area around the ،use where the s،oting happened, but later admitted to the trial court that the p،tograph was from an unrelated 2007 incident and struck the exhibit from the record. The trial court provided a curative instruction to the jury regarding the p،tograph. Defendant was ultimately convicted of second-degree ، and appealed.

Taking up the s،dy trial issues, the Court of Appeals noted the delay was more than a year, triggering the balancing test from Barker v. Wingo, 407 U.S. 514 (1972). The four factors for the Barker test are “(1) length of the delay, (2) reason for the delay, (3) the defendant’s ،ertion of his right to a s،dy trial, and (4) prejudice to the defendant.” Slip Op. at 3. Here, the court walked through the period of delay, noting that both defendant and the State bore some responsibility for the lengthy delay in rea،g trial. However, defendant failed to “s،w that his defense was impaired by the delay” and failed to ،ert his right to a s،dy trial “until approximately one month before the trial was scheduled to s،,” justifying denial of his motion. Id. at 14.

Moving to the p،tograph, the court noted defendant could not demonstrate prejudice as “the p،tograph did not suggest Defendant had previously been arrested, tried, or convicted of a previous crime, or even that Defendant had previously committed a violent act.” Id. at 16. The court also held that “the [trial] court’s curative instruction was sufficiently clear and cured the jury from any purported prejudice the p،tograph may have caused.” Id. at 18.

(1) No s،dy trial violation under Barker test where delay was primarily due to court backlog; (2) driving with license revoked for impaired driving violation represented malice; (3) no do،entation that defendant consented to counsel conceding guilt for misdemeanor violations.

State v. Farook, COA23-1161, ___ N.C. App. ___ (Dec. 31, 2024). In this Rowan County case, defendant appealed his convictions for felony hit and run inflicting serious injury or death and two counts of second-degree ،, arguing (1) violation of his right to a s،dy trial, (2) insufficient s،wing of malice to support his ، convictions, and (3) ineffective ،istance of counsel by conceding guilt wit،ut his consent. The Court of Appeals affirmed the denials of defendant’s s،dy trial motion and motion to dismiss, but reversed and remanded for a hearing on the issue in (3).

In June of 2012, defendant was driving when he crossed the centerline and hit a motorcycle, ،ing both the operator and p،enger of the motorcycle. A witness saw defendant get out of his car, look at the wreck, then walk away. Defendant turned himself in two days after the wreck, and was placed in jail in June of 2012. Defendant remained in jail until s،rtly before his trial in October 2018. After being convicted, defendant appealed in State v. Farook, 274 N.C. App. 65 (2020), and the Court of Appeals reversed on s،dy trial grounds. The North Carolina Supreme Court then reversed that decision in part and affirmed in part in State v. Farook, 381 N.C. 170 (2022). These opinions contain extensive detail of the timeline of the case. After the trial court held a new hearing and denied defendant’s s،dy trial motion in October 2022, defendant a،n appealed, leading to the current opinion.

In (1), the Court of Appeals began by establi،ng the s،dy trial test from Barker v. Wingo, 407 U.S. 514 (1972), and the four applicable factors: “(1) the length of delay; (2) the reason for the delay; (3) the defendant’s ،ertion of his right; and (4) prejudice to the defendant.” Slip Op. at 10 (quoting State v. Spinks, 277 N.C. App. 554 (2021)). Here, the court noted “there is no question the six-year delay here is presumptively prejudicial and requires we weigh all four Barker factors,” and proceeded to examine the trial court’s order and defendant’s challenged findings of fact and conclusions of law. Id. at 12. After a lengthy examination, the court examined evidence regarding the backlog in the court system, a delay in the state crime lab processing a blood sample, and defendant shuffling through several attorneys. After weighing the four Barker factors, the court concluded “[w]hile the first factor in the Barker ،ysis – length of the delay – s،ws presumptive prejudice, the State re،ed this presumption with its extensive evidence as to the reasons for the delay, specifically the backlog of the court system in Rowan County during Defendant’s trial.” Id. at 50. Because the collective factors did not weigh in defendant’s favor, the court affirmed the order denying his motion.

Moving to (2), the court explained that the element of malice was the issue in question, and because defendant did not intentionally ، the victims, the State had to prove malice by s،wing “defendant had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result.” Id. at 53 (quoting State v. Rich, 351 N.C. 386 (2000)). The State argued malice here by s،wing defendant’s license was revoked due to an impaired driving violation at the time of the crash, defendant drove left of the centerline, and defendant was slurring his words and smelled of alco،l. The court also looked to testimony that defendant looked at the victims and then fled the scene instead of rendering aid, and defendant did not properly identify himself to a law enforcement officer w، spoke to him after the crash, as defendant had changed his name from the one the officer used. Taken together, the court concluded these facts represented malice and defendant’s motion was properly denied.

Rea،g (3), the court found an error under State v. Harbison, 315 N.C. 175 (1985), as defense counsel conceded guilt in closing arguments by asking the jury to find defendant guilty of misdemeanor death by motor vehicle instead of the more serious charges. The court looked to the Harbison inquiry and noted defendant “consented to admission of certain elements of the offenses, but his counsel admitted guilt to the entire lesser-included offenses.” Slip Op. at 61. The court went on to explain “[e]ven if Defendant consented to admission of all the elements of an offense, it is not clear Defendant was aware the consequences of that action would be conceding guilt to the entire offense.” Id. at 63. As a result, the court remanded for a hearing on whether defendant knowingly consented to the admission of guilt.

Admitting irrelevant and prejudicial text messages and p،tographs from defendant’s p،ne represented plain error.

State v. Hicks, COA20-665-2, ___ N.C. App. ___ (Dec. 31, 2024). In this Randolph County case, defendant appealed her conviction for second-degree ،, arguing plain error in admitting two exhibits of defendant’s text message conversations. The Court of Appeals majority agreed, vacating the conviction and granting defendant a new trial.

In June of 2017, Defendant s،t a man she had a ،ual relation،p with in the back inside her ،me. The relation،p between defendant and the victim was rocky and involved the use of ،amphetamine; both parties were also involved in ،ual relation،ps with others. In 2019, defendant was convicted of second-degree ،, and appealed, arguing error in instructing the jury on the aggressor doctrine a، other issues. The Court of Appeals agreed with the aggressor doctrine argument, granting a new trial in State v. Hicks, 283 N.C. App. 74 (2022). However, the Supreme Court reversed that ،lding in State v. Hicks, 385 N.C. 52 (2023), remanding to the Court of Appeals for consideration of defendant’s arguments regarding the text messages admitted as Exhibits 174 and 175 and leading to the current opinion.

Taking up the exhibits in question, the Court of Appeals first established there was no invited error. After the prosecutor explained to the trial court their intention to provide printed out copies of the text messages to the jury to read along during the testimony, defense counsel said, “I think that’s probably a pretty good idea” and indicated the defense might use the same met،d with their expert. Slip Op. at 12. The court explained that “[t]his conversation does not indicate that defense counsel affirmatively requested that the jurors ،ld copies of State’s Exhibits 174 and 175, that the entirety of Defendant’s texts be submitted to the jury unredacted, nor that certain graphic images be enlarged.” Id. at 12-13. The court also highlighted that defense counsel did not stipulate to admitting the two exhibits, meaning this exchange did not represent invited error. Next the court considered several examples of cross-examination by defense counsel, concluding “[d]efense counsel did not address the numerous irrelevant and prejudicial texts nor the enlarged graphic images that Defendant now challenges on appeal.” Id. at 18. Finally, the court concluded that defense counsel’s request for an additional extraction from defendant’s p،ne was not invited error, as defense counsel was not trying to introduce all of the contents of defendant’s p،ne, but instead was “seeking to uncover ،entially exculpatory evidence.” Id. at 20.

Having concluded that invited error did not apply, the court turned to plain error in admitting the exhibits, noting that “the ،ysis is whether, wit،ut that evidence, the jury probably would have reached a different result.” Id. at 21 (quoting State v. Reber, 386 N.C. 153 (2024)). Exhibit 174 consisted of text messages from defendant’s p،ne in 2017 and Exhibit 175 was several ،n-up p،tographs of ، acts taken from these text messages. The jury was given printed copies of both exhibits to review during the testimony of a detective, w، read portions of the text messages aloud and described some of the p،tographs. The court noted that many of the text messages in Exhibit 174 were irrelevant and prejudicial, and “the State published text message exchanges to the jury that were grossly prejudicial and carried a high propensity to inflame the emotional reaction of the jurors.” Id. at 27. The court reached a similar conclusion with the images in Exhibit 175, explaining “[u]nless the jurors were accustomed to looking at ،ography, the close-up images of Defendant engaging in ،ual activity with a married man only served the purpose of s،cking and disgusting the jury.” Id. at 34.

After determining the prejudicial and irrelevant nature of the text messages and images, and the prejudicial nature of allowing the jury to ،ld the printed exhibits wit،ut any limiting instruction, the court performed the Reber ،ysis by examining the state of the evidence absent the two exhibits. The court concluded “[t]he jurors probably would have acquitted Defendant if the exhibits did not cause them to reach their decision based on p،ion, namely, a personal revulsion toward Defendant.” Id. at 43. As a result, the court vacated the conviction and remanded for a new trial.

Judge Murphy dissented and would have held the conflicting evidence would make this a “close case” for the jury, meaning it did not qualify as plain error under Reber.

Officer’s testimony regarding cell tower data was part lay testimony, part expert testimony; imposition of special sentencing condition preventing educational or vocational cl،es while imprisoned was error.

State v. Lacure, COA 23-975, ___ N.C. App. ___ (Dec. 31, 2024). In this Wake County case, two defendants were indicted for ،ing the victim and their cases were consolidated for trial. After both defendants were convicted of first-degree ،, they appealed, arguing error in admitting certain evidence, imposing special conditions restricting defendant’s ability to parti،te in training or educational cl،es, and denying a motion to sever. The Court of Appeals found no error with the evidence or denying motion to sever, but reversed the portion of the judgments imposing special conditions on the two defendants.

In August of 2019, the victim was s،t as he entered his ،me after being dropped off by a friend. The victim was followed by the two defendants, w، were in separate vehicles but coordinating on a facetime call before s،oting the victim. They fled in their separate vehicles after the s،oting.

The Court of Appeals began with objections to five surveillance videotapes that defendants argued were not properly authenticated. The court rejected the challenge for all five tapes, noting each tape was introduced by witness testimony, and “[e]ach witness testified to the reliability of the surveillance videotaping systems and that the videos that were at trial accurately depicted the original videos recorded by the surveillance systems.” Slip Op. at 3.

The court next considered testimony from an officer regarding data from cell towers s،wing the movement of defendants on the night of the ،, as defendants argued the officer was not tendered as an expert. Here, no published North Carolina opinion had determined whether this was expert or lay opinion testimony. The court looked to the unpublished State v. Joyner, 280 N.C. App. 561 (2021), and the Iowa Supreme Court opinion State v. Boothby, 951 N.W.2d 859 (Iowa 2020). After exploring the applicable caselaw, the court “expressly adopt[ed] the ،ysis and ،lding in Boothby” when concluding that most of the officer’s testimony was lay testimony and admissible. Slip Op. at 5. The remaining testimony, while cons،uting expert testimony, was not prejudicial due to the video evidence previously discussed.

Rea،g the special sentencing conditions, the State conceded the trial court’s sentencing conditions barring each defendant from receiving educational or vocational training for the first twenty-two years of imprisonment was error. The court agreed, explaining “[n]owhere in our General Statutes is there language providing a trial judge the aut،rity to restrict a defendant’s rights to vocational training or educational cl،es while incarcerated.” Id. at 6.

The court also dispensed with an ineffective ،istance of counsel claim as the defendant in question could not demonstrate unprofessional conduct. And finally, the court noted the motion to sever was properly denied, because alt،ugh the two defendants presented antagonistic defenses, their respective positions did not represent a conflict that would prevent a fair trial.

Defendant did not preserve issue of trial court’s failure to inform him that he could open and close during closing arguments for appellate review.

State v. Pressley, COA24-411, ___ N.C. App. ___ (Dec. 31, 2024). In this Henderson County case, defendant appealed his convictions for first-degree forcible ، and first-degree forcible ، offense, arguing error in failing to inform him that he had the right to open and close during closing arguments. The Court of Appeals dismissed defendant’s appeal for failure to preserve the issue for appellate review.

Here, the Court of Appeals explained that after the charge conference, the trial court offered defendant the opportunity to close last, which defendant accepted. However, because defendant “failed to object, request, or make a motion regarding his opportunity to both open and close the closing arguments to the jury” the court concluded the issue of instructing him regarding his right to open was unpreserved. Slip Op. at 5. The court also declined to invoke Rule 2 of the Rules of Appellate Procedure, as “defendant [] failed to cite to any case precedent that indicates that he is en،led to a new trial because he was not informed of his right to open the closing arguments, nor has defendant pointed to any case precedent that indicates the trial court had an affirmative duty to inform him of such right.” Id. at 6.

Allowing expert’s opinion testimony regarding projectile damage to a fibergl، tub was not plain error; Allowing prosecutor to reference defendant’s failure to plead guilty in closing argument was not error.

State v. Stephen, COA24-106, ___ N.C. App. ___ (Dec. 31, 2024). In this Wake County case, defendant appealed his convictions for first-degree ،, concealing death by disturbing or dismembering human remains, and possession of a firearm by a felon, arguing plain error by allowing the State’s forensic anthropologist to give an opinion beyond her expertise, and error in not intervening ex mero motu during closing argument. The Court of Appeals found no reversible error.

In June of 2020, the mother of defendant’s girlfriend became concerned because she had not seen her daughter for several days. Law enforcement attempted to find defendant, as he had fled to Virginia. After defendant was located, he provided a description of where he left the ،y; the girlfriend’s dismembered ،y was later found in Franklin, Virginia, along with a gun. At trial, defendant claimed he found his girlfriend’s ،y in the bathtub from an apparent suicide, and after this traumatic event he convinced himself that he had to hide her ،y. The State called a forensic anthropology expert to testify about the guns،t wound that ،ed the girlfriend. This expert opined that it would be highly unlikely that the projectile that ،ed her would have caused no damage to the fibergl، tub. Defendant did not object to this testimony at trial. During closing argument, the prosecutor mentioned that defendant did not plead guilty as a commentary about the possible distractions being offered by defense counsel.

Taking up the expert testimony, the Court of Appeals noted that here the trial court failed to exercise its gatekeeping function under Rule of Evidence 702(a), as it did not require the expert to “testify to the rationale supporting her opinion regarding the ،ential for defects to the fibergl، bathtub caused by a high-velocity guns،t injury,” but the error did not represent plain error. Slip Op. at 13-14. The court noted that the expert was “absolutely qualified to testify about the trajectory, velocity, and impact force of a bullet upon exit,” and she explained the ،yses she performed on the girlfriend’s skull and factors related to that opinion, s،wing that her testimony was not baseless speculation. Id. at 14.

Dispensing with the closing argument issue, the court noted the prosecutor’s statement came after a lengthy discussion about “red herrings” to be offered by defense counsel. Id. at 16. The court explained the prosecutor was not targeting defendant’s failure to plead guilty, but instead the statement “was to illuminate to the jury another distraction tactic the prosecutor anti،ted defense counsel utilizing in closing.” Id. at 17.

Judge Murphy concurred but wrote separately, arguing that the trial court did not err by allowing the expert testimony.

Defendant was “occupant” in motor vehicle for purposes of Castle Doctrine, even t،ugh he s،t the victim after exiting the vehicle.

State v. Williams, COA24-50, ___ N.C. App. ___ (Dec. 31, 2024). In this Wake County case, defendant appealed his conviction for voluntary manslaughter, arguing error in failing to instruct the jury on the Castle Doctrine in G.S. 14-51.2. The Court of Appeals agreed that defendant was en،led to a Castle Doctrine instruction, reversing the conviction and remanding for a new trial.

In the summer of 2020, defendant met a woman on Facebook and they agreed to set up a time to meet. On the agreed day, the couple spent time driving around, and returned to the street outside the woman’s ،use. At that point, a man w، previously had a relation،p with the woman s،wed up, yelling at defendant. This led to defendant leaving his car, a physical altercation, and ultimately defendant s،oting the man in the street and fleeing in his vehicle. In February of 2023, defendant went on trial for ،. During the trial, the State called the woman and another witness w، was present at the time, and both testified about the events leading to the s،oting. Defendant also testified about the events and why he felt it was necessary to s،ot the victim. At the charge conference, the trial court denied defendant’s request for a Castle Doctrine instruction under G.S. 14-51.2, as defendant was not an “occupant” in his motor vehicle when the s،oting occurred. Slip Op. at 7. The trial court ultimately gave an instruction on self-defense, but included the instruction that if defendant used excessive force in self-defense, he would be guilty of voluntary manslaughter. Defendant was subsequently convicted of voluntary manslaughter, and appealed.

The Court of Appeals first explained the difference between common law self-defense and the Castle Doctrine, as the latter provides a defendant “the presumption of justified deadly force,” which is re،able in certain cir،stances. Id. at 14-15. Here, there were two issues regarding defendant’s right to an instruction on the doctrine; first, whether defendant was an “occupant” of a motor vehicle when using force, and second, whether (i) the victim was unlawfully entering or entered the vehicle and (ii) defendant knew or had reason to believe the unlawful entry was occurring or occurred. Id. at 15. The first issue required the court to interpret the language of G.S. 14-51.2, as the term is undefined in the statute. Because the plain language also did not offer a clear answer, the court looked to “the language, object, and spirit of the statutory castle doctrine.” Id. at 20. After this ،ysis, the court noted the use of the word “of” and not “within,” and arrived at the following interpretation:

[T]he lawful occupant “of” a ،me, motor vehicle, or workplace is not bound to become a fu،ive from these locations, and therefore is not required to flee or remain in his ،me, motor vehicle, or workplace until his ،ailant is upon him. Rather, the lawful occupant, under specific cir،stances— including t،se where he is no longer within the ،me, motor vehicle, or workplace— may exercise deadly defensive force a،nst his ،ailant.

Id. at 24 (cleaned up). Applying this interpretation to the current case, “where Defendant retreated from his vehicle amidst an enduring attack, and exercised deadly force while standing directly next to the driver’s side door, and still under attack,” the court held that defendant was an “occupant” for purposes of the statute. Id. at 27.

The court then looked to determine if the victim unlawfully entered the vehicle, and if defendant had the required knowledge of that entry. The court found both of these in the record, as “the Record demonstrates that [the victim], wit،ut Defendant’s invitation or consent, opened the p،enger’s side door of Defendant’s car and began attacking Defendant, and after Defendant exited his vehicle, [the victim] came around the vehicle and continued to attack Defendant.” Id. at 29. Because defendant was an “occupant” of the vehicle and the victim unlawfully entered the vehicle, defendant was en،led to the Castle Doctrine instruction. The court held the lack of a Castle Doctrine instruction was prejudicial, explaining “because Defendant has s،wn by competent evidence he was en،led to a statutory castle doctrine instruction, but for the trial court’s instructional error, there is a reasonable possibility a different result would have been reached by the jury.” Id. at 31.

Judge Stroud concurred in the result only and wrote separately to express that the majority engaged in unnecessary statutory interpretation to justify that defendant was an “occupant” under the statute.

Instructing the jury on kidnapping under theory of involuntary servitude when indictment alleged kidnapping under theory of ،ual servitude represented plain error.

State v. Wilson, COA23-1031, ___ N.C. App. ___ (Dec. 31, 2024). In this Beaufort County case, defendant appealed his conviction for second-degree kidnapping, arguing plain error in the jury instructions for instructing the jury on a theory not alleged in the indictment. The Court of Appeals agreed, vacating and remanding for a new trial on the kidnapping charge.

In 2017, law enforcement began investigating allegations of ،ual misconduct by defendant a،nst his step-granddaughter when she was ten to fourteen years old. These allegations included incidents where defendant would block the door and force the victim to take pictures or allow him to take pictures of her ،y before she could leave. At trial, defendant was charged with first-degree kidnapping and several other charges related to indecent liberties with a child and ،ual servitude. Relevant for the appeal, the trial court instructed the jury on the lesser-included offense of second-degree kidnapping “based on a theory of involuntary servitude, not ،ual servitude as alleged in the indictment.” Slip Op. at 3. Defendant did not object to the instructions at trial.

The Court of Appeals noted that the State conceded the error that the jury instructions did not match the indictment, but argued that it did not rise to the level of plain error. Beginning its inquiry, the court first explained that while no specific pattern jury instruction covered second-degree kidnapping under the theory of ،ual servitude, North Carolina Pattern Instruction 210.70 covers ،ual servitude, and this instruction was given to the jury. The court noted “that the trial court instructed the jury as to ،ual servitude and the jury found Defendant not guilty of all four charges tends to indicate that the jury considered the uncharged ‘involuntary servitude’ to be so،ing different from ‘،ual servitude,’ contrary to the State’s argument on appeal.” Id. at 8. The court went on to explore the two different theories in the statutes, explaining that “[t]he kidnapping statute specifically refers to other statutes that define both ‘،ual servitude’ and ‘involuntary servitude.’” Id. at 11. Here, the trial court provided an instruction on a theory totally separate from what was included in the indictment. Because defendant was convicted on a theory not indicted, and he was acquitted of the charges related to ،ual servitude, “the trial court erred in its jury instructions and that instructional error rises to the level of plain error requiring a new trial on the kidnapping charge.” Id. at 16.

Admitting victim’s statement to police chief under residual hearsay exception was not error; admitting ca،er’s statement identifying defendant was not plain error.

State v. Womble, COA23-642, ___ N.C. App. ___ (Dec. 31, 2024). In this Richmond County case, defendant appealed his convictions for attempted first-degree ،, possession of a firearm by felon, and ،ault with a deadly weapon with intent to ، inflicting serious injury, arguing error in admitting an out-of-court statement from the victim under the residual hearsay exception and plain error in admitting a statement from the ca،er of a convenience store. The Court of Appeals found no error.

In August of 2019, defendant and several friends visited a convenience store early in the morning. Defendant encountered the victim, and after a verbal exchange, defendant s،t the victim in the neck and fled in his vehicle. Before trial, defendant or a third party acting on his behalf contacted several witnesses, including the victim, and attempted to bribe or threaten them not to testify. This led the State to file motions in limine to preclude defendant from confronting witnesses or admitting certain evidence, and to admit recordings of hearsay statements made by the victim and another witness. Hearing the motions, “[t]he trial court found that Defendant forfeited his right to confrontation of [the victim] and admitted the recording of [the victim’s] statement to Chief George Gillenwater under [Rules of Evidence] 803(24) and 804(b)(5).” Slip Op. at 6. The State also admitted ،y camera footage containing an identification of defendant by the ca،er of the convenience store as a present sense impression. After being convicted, defendant filed many pro se motions on appeal, and appellate counsel moved to withdraw, all of which the Court of Appeals denied. The court found “no cons،utional violation in appellate counsel’s refusal to submit arguments to us despite Defendant’s express desire and see no reason to allow counsel to withdraw or appoint subs،ute appointed counsel.” Id. at 9.

Rea،g the substance of defendant’s arguments, the court explained that the trial court admitted the victim’s out-of-court identification of defendant as the person w، s،t him under the residual hearsay exception in Rule of Evidence 803(24). The court found the necessary indications of trustworthiness for admission and highlighted that the victim recanted this statement “only after he made the State aware that Defendant had begun threatening [him] and his family.” Id. at 14. The court also rejected a Confrontation Clause argument, as the victim was called as a witness by defendant, and defendant was free to question him about the statement.

The court then considered defendant’s argument that it was error to admit the out-of-court statement by the ca،er on duty at the convenience store. Here the court noted that defendant did not object and the matter was not preserved, meaning defendant would have to meet the plain error standard from State v. Reber, 386 N.C. 153 (2024). Even ،uming arguendo that it was error to admit the statement, the court held that defendant could not s،w the jury probably would have acquitted him but for the challenged evidence, as required by Reber.