This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on December 3, 2025.
Trial court did not err by admitting expert testimony on historical cell-site handoff analysis; Defendants failed to preserve an objection to an alleged discovery violation; and Defendants failed to show ineffective assistance of counsel in not objecting to the expert testimony.
State v. Allen & Rush, No. COA25-336 (N.C. Ct. App. Dec. 3, 2025) (Forsyth County). On March 25, 2022, Defendants Allen and Rush committed a drive-by shooting at Kermit’s Hot Dog restaurant (“Kermit’s”) in Winston-Salem, injuring three victims. At trial, FBI Agent Harrison Putman testified as an expert in historical cell site analysis. Though his initial written report indicated that neither of Defendants’ phones had initiated cell site service in the area around Kermit’s on the day of the shooting, Agent Putman testified at trial that around 2 p.m., Defendant Rush’s phone had used the cell tower site next to Kermit’s, which he described as “handoff” data stored by the cell service providers. Agent Putman based this opinion on voluminous data from the cell service providers. Both Defendants were convicted of two counts of assault with a deadly weapon with intent to kill inflicting serious injury, one count of assault with a deadly weapon with intent to kill, and seven counts of discharging a firearm into occupied property. Both Defendants appealed.
Before the Court of Appeals, both Defendants argued that (1) the trial court erred by admitting Agent Putman’s expert testimony on historical cell-site “handoff” analysis, (2) the trial court erred in failing to find a discovery violation, and (3) they received ineffective assistance of counsel.
Addressing the first issue, the Court of Appeals found Defendant Allen failed to preserve the issue for appellate review, but that neither Defendant was entitled to relief on this basis. Under Evidence Rule 702, a witness qualified as an expert may testify in the form of an opinion if: (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. N.C. R. Evid. 702(a). Here, the Court of Appeals said, Agent Putman’s testimony was grounded in sufficient facts or data and reliable principles and methods. Further, the trial court had ample basis to conclude Agent Putman’s methodology was reliable and properly applied. Finally, assuming error, any such error was harmless given the “overwhelming independent evidence.”
As for the second issue, both Defendant’s argued the trial court erred by failing to exclude the expert opinion when the State failed to disclose it until the night before the witness testified. The Court of Appeals noted that, though Defendant Rush raised a discovery objection at trial, upon further research Defendant Rush confirmed that he had in fact received the data in discovery. As neither Defendant objected to this testimony, both failed to preserve the issue for appellate review.
As for the third issue, both Defendants argued that counsel was ineffective for failing to object to the alleged discovery violation, to object to Agent Putman’s surprise testimony, or to hire an expert in historical cell site analysis. Under Strickland, to establish ineffective assistance of counsel, a defendant must show (1) deficient performance and (2) resulting prejudice. Here, the Court of Appeals said, both defense attorneys demonstrated command of cell-site methodology during their examinations of Agent Putman, reflecting familiarity with the field and targeting weaknesses in the State’s presentation. Their decision not to object fell within permissible trial strategy, not deficient performance. Assuming any deficiency existed, Defendants could not show prejudice.
Guilford County Superior Court lacked jurisdiction to revoke Defendant’s probation absent evidence that Defendant was sentenced, violated probation, or resided in Guilford County.
State v. Crabtree, No. COA25-395 (N.C. Ct. App. Dec. 3, 2025) (Guilford County). On June 27, 2022, in Franklin County, Defendant was convicted of felony fraudulently burning a dwelling and conspiracy and sentenced to two consecutive sentences of six to seventeen months. That sentence was suspended, and Defendant was placed on supervised probation for sixty months. On August 31, 2024, in Guilford County, Defendant’s probation officer filed violation reports alleging that Defendant had violated the terms of his probation by, among other things, committing new criminal offenses in Pennsylvania. The violation reports came on for a hearing on September 9, 2024, in Guilford County. The trial court revoked probation and activated the suspended sentences.
Defendant’s pro se notice of appeal was defective, and the Court of Appeals granted his petition for certiorari to review the orders revoking probation. Defendant argued, among other things, that the trial court lacked jurisdiction to revoke probation. By statute, probation may be revoked by any judge entitled to sit in the court which imposed probation and who is resident or presiding in the district where the sentence of probation was imposed, or where the probationer violates probation, or whether the probationer resides. G.S. 15A-1344(a). Here, the Court of Appeals observed (1) Defendant’s sentence and probation were imposed in Franklin County; (2) the violation was alleged to have occurred in Pennsylvania; and (3) there is no indication Defendant resided in Guilford County. The Court of Appeals concluded that the Guilford County Superior Court therefore did not have jurisdiction to revoke probation, and it vacated the September 13, 2024, judgments.
Sufficient evidence of penetration supported Defendant’s conviction for statutory sex offense with a child by an adult.
State v. Cruz, No. COA25-456 (N.C. Ct. App. Dec. 3, 2025) (Mecklenburg County). In mid-August 2020, Defendant molested his daughter-in-law’s brother’s four-year-old daughter “Sarah.” In May 2021, Defendant was indicted for statutory sex offense with a child by an adult and indecent liberties with a child. The matter came on for trial in February 2024. Sarah testified at trial that her cousins’ grandfather touched her inappropriate part. Sarah’s father testified that Sarah told him she went to the bathroom to wipe herself off and there was blood on the toilet paper. A registered nurse testified that Sarah told her that her cousins’ grandfather put his fingers in her “colis,” and it hurt. (“Colis” was the word Sarah used to describe her vagina.) The nurse conducted a physical exam of Sarah and found a 0.25 millimeter laceration at the bottom of Sarah’s labia minora. A forensic interviewer also testified that Sarah told her that her cousins’ grandfather had put his whole finger into her colis. Defendant’s DNA was found on Sarah’s underwear. Defendant was convicted of statutory sex offense with a child and indecent liberties with a child and appealed.
Before the Court of Appeals, Defendant argued the State presented insufficient evidence of penetration to support a conviction of statutory sex offense with a child by an adult. A person is guilty of statutory sex offense with a child by an adult if the person, among other things, engages in a sexual act with a victim. G.S. 14-27.28(a). “Sexual act” is defined as the penetration, however slight, of any object (such as a finger) into the genital or anal opening of another person’s body. G.S. 14-27.20(4). Here, the Court of Appeals said, the State presented substantial evidence supporting the element of penetration, including Sarah’s own testimony that Defendant touched her vagina and the testimony of a registered nurse that she found a laceration on Sarah’s labia.
Evidence was insufficient to show Defendant aided and abetted statutory rape of a child by an adult and statutory sex offense of a child by adult; evidence was insufficient to show Defendant allowed the commission of a sexual act upon a child; no plain error in permitting expert to testify that the absence of injury does not lessen any concern for sexual abuse.
State v. Kleist & Lipscomb, No. COA24-677 (Dec. 3, 2025) (Cleveland County). In December 2020, Defendant Lipscomb and her two children “Val,” age seven, and “Luke,” age nine, lived with her boyfriend Defendant Kleist. At some point, Defendant Kleist molested the children. In particular, he forced Luke to touch his penis, performed oral sex on him, and anally penetrated him. Defendant Kleist also penetrated Val’s vagina and anus with his penis, penetrated her anus with his finger and a bottle, forced her to perform oral sex on him, and performed oral sex on her. Both Defendants were indicted on multiple charges arising from the sexual abuse.
The matter came on for trial in July 2023. Luke and Val testified about Defendant Kleist’s actions. Val testified that she told Defendant Lipscomb what Defendant Kleist had been doing to her, but Defendant Kleist continued to abuse her after she had informed Defendant Lipscomb. Nurse Liana Hill, admitted as an expert in forensic sexual assault examinations, testified that the children’s physical examinations were normal, but that this does not rule out sexual assault. She testified, consistent with her written report, that given the overwhelming fact that the majority of children who disclose sexual abuse have normal genital exams, the absence of injury on the examinations in no way lessens any concern for sexual abuse. Defendant Kleist was convicted of statutory rape of a child by an adult and two counts of statutory sexual offense with a child by an adult. Defendant Lipscomb was convicted of aiding and abetting those crimes and two counts of felony child abuse by sexual act. Both Defendants appealed.
Before the Court of Appeals, Defendant Lipscomb argued the trial court erred by: (1) denying her motion to dismiss for insufficient evidence (1A) the charges of aiding and abetting statutory rape and statutory sexual offense and (1B) felony child abuse, (2) failing to instruct the jury on the intent requirement for aiding and abetting, and (3) imposing an unconstitutional sentence. Both Defendants argued the trial court erred by (4) admitting nurse Hill’s testimony that the absence of physical injuries should in no way lessen any concern for sexual abuse. Given its disposition of these arguments, the Court of Appeals addressed only issues one and four.
As for aiding and abetting (Issue 1A), to prove aiding and abetting the State must show (1) another person committed a crime, (2) the defendant knowingly advised, instigated, encouraged, procured, or aided that person to commit the crime, and (3) the defendant’s actions or statements caused or contributed to the crime’s commission. Here, the Court of Appeals found no evidence Defendant Lipscomb aided, actively encouraged, or communicated an intent to assist Defendant Kleist in committing statutory rape of a child by an adult or statutory sexual offense of a child by an adult. As for Luke, it also found no evidence that Defendant Lipscomb knew that Defendant Kleist was abusing him. The Court of Appeals distinguished the State’s caselaw as involving a parent who was present and witnessed the abuse but failed to intervene.
As for felony child abuse (Issue 1B), any parent of a child less than 16 who allows the commission of any sexual act upon the child is guilty of a Class D felony. G.S. 14-318.3(a2). Construing the term “allows,” the Court of Appeals said that to allow something is to refrain from stopping it. Thus, a parent allows the commission of a sexual act when she: (1) knows that a sexual act has occurred or is occurring, (2) has the capacity to prevent further acts, and (3) fails to take action to protect her child. Her presence during the act is not required. Here, the Court of Appeals found substantial evidence that Defendant Lipscomb allowed the commission of a sexual act upon Val: Val told Defendant Lipscomb about Kleist’s conduct, Defendant Lipscombe could have prevented the abuse, but Defendant Lipscomb took action to protect Val. As for Luke, however, the Court of Appeals found no evidence Defendant Lipscomb allowed the commission of a sexual act upon him because the State failed to prove Defendant Lipscomb knew about the sexual acts upon Luke.
As for the expert testimony (Issue 4), in a child sex case, absent physical evidence of sexual abuse, the trial court should not admit an expert opinion that sexual abuse has in fact occurred. State v. Stancil, 355 N.C. 266 (2002). Here, the Court of Appeals found no violation of Stancil in the admission of Nurse Hill’s testimony that the absence of injuries does not rule out sexual assault. It distinguished Defendants’ caselaw in which experts more clearly vouched for child victims. Further, given the children’s testimony, corroborated by “their outcries to family members and behavioral changes observed by multiple witnesses,” Defendants could not show that, but for the admission of Nurse Hill’s testimony, the jury probably would have reached a different result.
Trial court erred by sentencing Defendant for felony possession of marijuana when trial court instructed the jury only on misdemeanor possession of marijuana.
State v. McKoy, No. COA25-195 (N.C. Ct. App. Dec. 3, 2025) (New Hanover County). Defendant was indicted for, among other things, felony possession of a Schedule IV controlled substance (marijuana). At trial, however, the trial court instructed the jury on misdemeanor possession of marijuana, that is, without requiring a finding that the defendant possessed more than 1.5 ounces. See G.S. 90-95(d)(4). Defendant was convicted and sentenced for, among other things, felony possession of marijuana. Before the Court of Appeals, Defendant argued the trial court erred by entering judgment on felony possession of marijuana. Relying on State v. Gooch, 307 N.C. 253 (1982), the Court of Appeals held that, by failing to submit to the jury the amount requirement, the trial court essentially submitted the offense of misdemeanor possession of marijuana, and the jury convicted Defendant of that offense. Consequently, the trial court erred by sentencing Defendant for felony possession of marijuana.
Trial court erred by admitting evidence of Defendant’s post-arrest statements, but Defendant could not show plain error; evidence was sufficient to support drug and firearm convictions.
State v. Mitchell, No. COA25-405 (N.C. Ct. App. Dec. 3, 2025) (McDowell County). Defendant lived on property owned by Chet Saylor. In September 2022, Saylor became concerned that, while Saylor was in jail, Defendant had moved into the farmhouse and was engaged in criminal activity. On September 25, 2022, Saylor gave police permission to enter the farmhouse. Approaching the home, officers saw Defendant sitting in an armchair. Defendant invited the officers inside, where they observed drug paraphernalia. Defendant said he had permission to be in the house. Upon learning that Defendant had an active warrant, the officers advised Defendant to stand up from the chair and handcuffed him. When Defendant stood up, the officers observed a plastic bag containing suspected methamphetamine in the seat. The officers called Lieutenant Kirk Hensley for back-up.
Upon arriving at the home, Lt. Hensley asked, “who lives here?” Defendant responded that he lived there, that he had written permission to stay in the house, and that the written permission was in the master bedroom. Defendant led Lt. Hensley to the master bedroom. Defendant said he stayed in this bedroom and used the adjoining bathroom. After obtaining written consent to search from Saylor, Lt. Hensley found a black bag under the bed containing two bundles of white powder, suspected fentanyl. In the adjoining bathroom, police discovered a shotgun.
Defendant was charged with possession of a firearm by a felon, trafficking opium or heroin, possession with intent to sell or deliver a Schedule II controlled substance, maintaining a dwelling for controlled substances, and possession with intent to sell or deliver methamphetamine. Defendant filed a pretrial motion to suppress evidence of his post-arrest statements. The trial court denied the motion. Defendant was convicted by a jury of all counts and he appealed.
Before the Court of Appeals, Defendant argued the trial court erred by: (1) denying his motion to suppress evidence of his post-arrest statements, and (2) denying his motion to dismiss the charges.
As for the first issue, under Miranda, any statements elicited by police during custodial interrogation are inadmissible unless the person was warned of their rights against self-incrimination. Interrogation means any words or actions by the police that the police should know are reasonably likely to elicit an incriminating response. Here, it was undisputed that Defendant was in custody and had not been apprised of his rights when he made inculpatory statements. Overruling the trial court, the Court of Appeals concluded that Lt. Hensley’s question – who lives here? – amounted to interrogation, and the trial court erred by admitting the statements. Reviewing the sufficiency of the evidence absent the inculpatory statements, the Court of Appeals opined that there would not have been sufficient evidence to show Defendant’s possession of the fentanyl discovered in the bedroom, possession of the firearm in the bathroom, or maintaining a dwelling for controlled substances. Defendant failed, however, to object when his statements were admitted. Reviewing for plain error, the Court of Appeals held that, “despite the State’s insufficient and circumstantial evidence,” Defendant could not show a probable impact on the verdict (a “near-insurmountable burden”).
As for the second issue, the Court of Appeals concluded that, viewing all the evidence in the light most favorable to the State, the evidence was sufficient to withstand Defendant’s motion to dismiss on each of the charges.
Evidence was sufficient to support conviction for first-degree kidnapping; no error in sentencing Defendant for both first-degree kidnapping and armed robbery.
State v. Mosley, No. COA25-53 (N.C. Ct. App. Dec. 3, 2025) (Forsyth County). Defendant went to the victim’s home, and the two conversed in the living room. Defendant pulled out two guns, shot the victim in the leg, and then took the victim’s wallet and cell phone. Defendant pointed a gun at the victim and ordered him to go into a rear bedroom. The victim dragged himself along the wall to the bedroom. Defendant ordered the victim to sit on the bed while he searched the closet. Defendant took two gold chains from the victim, shot the victim’s arm, and departed. Defendant was indicted for multiple charges, including robbery with a dangerous weapon and first-degree kidnapping. Defendant was convicted and appealed.
Before the Court of Appeals, Defendant argued the trial court erred by denying his motion to dismiss the first-degree kidnapping charge. First-degree kidnapping is committed when a person unlawfully confines, restrains, or removes from one place to another any other person without consent if such confinement, restraint, or removal is for the purpose of facilitating a felony or doing serious bodily harm. G.S. 14-39. Here, the Court of Appeals said, there was “clearly” sufficient evidence to show Defendant committed the crime of first-degree kidnapping.
The Court of Appeals said Defendant’s argument is “more appropriately” a Double Jeopardy claim, to wit, that he should not be punished for both kidnapping and robbery when the kidnapping was inherent in the robbery. Here, the Court of Appeals said, Defendant did not ask the trial court to arrest judgment on the kidnapping, so the issue was not properly preserved. But even if Defendant had requested an arrest of judgment, the trial court would not have erred by denying such request.
The legislature did not intend for our kidnapping statutes to apply to restraint that is an inherent, inevitable feature of another felony. State v. Fulcher, 294 N.C. 503 (1981). Restraint is separate, complete, and independent from the other felony if it exposes the victim to greater danger than that inherent in the robbery. State v. Pigott, 331 N.C. 199 (1992). Here, the Court of Appeals said, the restraint was separate, complete, and independent of the restraint inherent in the armed robbery. By forcing the victim, after shooting him in the leg, to move into another room, Defendant exposed the victim to greater danger than that inherent in the robbery.
