This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on January 7, 2026.
Videos of the defendant sexually assaulting his unconscious wife were authenticated by her testimony that (a) she recognized herself and the defendant’s anatomy in the videos, and (b) she found the videos in his email account.
State v. Leggett, __ N.C. App. __, __ S.E.2d __, 2026 WL 40408 (Jan. 7, 2026) (Wake County) (Griffin, J.). The State’s evidence showed that the defendant repeatedly drugged his wife, had sex with her while she was unconscious, and recorded it. She discovered the recordings on one of his devices and emailed them to herself, then contacted police. He was charged with, and convicted of, rape and other offenses. (1) The recordings were sufficiently authenticated and properly admitted. Under N.C. R. Evid. 901(b)(4), evidence may be authenticated by its “appearance” and “distinctive characteristics.” Here, the victim recognized the appearance and characteristics of herself, the defendant’s hands and penis, and the room in which the sexual assaults took place. Further, she discovered the videos in the defendant’s email account. Although there was no testimony about the accuracy or functioning of the recording device, such testimony is not the only way to authenticate a recording. Further, although some questions arose at trial about the exact time at which the videos were transferred to a police drive, and about the security of the chain of custody, the defendant provided no reason to believe that the recordings had been altered or were inaccurate. The questions therefore went to weight, not admissibility. (2) The trial judge erred in placing the defendant on satellite-based monitoring (SBM) for life. The defendant was found guilty of an aggravated offense. He was given a Static-99 risk assessment, and scored 0, or “below average risk.” The State presented no additional evidence concerning the need for SBM. Under prior precedent, if a defendant does not receive a “high risk” score on the Static-99 and the State presents no additional evidence, the trial court may not conclude that the defendant “requires the highest possible level of supervision and monitoring,” G.S. 14-208.40A(c1), a finding that is required to order lifetime SBM.
A recording of a voicemail was authenticated by the recipient’s testimony that the recording was accurate and by a forensic analyst’s testimony that the recording was the entire voicemail, despite the recipient’s testimony that she thought the voicemail had been longer.
State v. Oakes, __ N.C. App. __, __ S.E.2d __, 2026 WL 40400 (Jan. 7, 2026) (Vance County) (Collins, J.). The defendant was charged with, and convicted of, the first-degree murder of his mother. He suffered from schizophrenia, “and in the five years leading up to trial, Defendant twice lost and regained the capacity to stand trial.” Prior to trial, defense counsel indicated an intention to pursue insanity and diminished capacity, but the defendant told the judge that he did not want counsel to pursue those defenses. (1) The defendant did not preserve for review his argument that the trial court wrongly prevented him from raising insanity and diminished capacity as he did not object at the time of the court’s ruling. (2) The defendant claimed that trial counsel provided ineffective assistance, but did not allege any deficient performance, so the reviewing court rejected his argument. (3) The defendant claimed that the trial judge erred by adopting the findings in an expert’s report on the defendant’s competency rather than making individual findings. But adopting the findings in a report is not error under State v. Coley, 193 N.C. App. 458 (2008), and the defendant did not dispute the report. (4) The defendant argued that the trial court erred by failing to conduct a sua sponte competency hearing at the start of trial. A court must do so when there is substantial evidence calling a defendant’s competency into question. Here, the defendant had been examined and found competent, was taking his medication, and responded lucidly in colloquies with the court, so no hearing was required. (5) A voicemail of the defendant threatening his mother just before the murder was sufficiently authenticated and properly admitted. The voice mail was left on the defendant’s sister’s phone as a result of an inadvertent call placed by the mother. The sister testified that she had recently reviewed the voice mail; that although she thought the message had been longer, the recording was accurate; and that she recognized her brother’s and mother’s voices. A forensic data analyst testified to the extraction of the message from the sister’s phone and stated that the full recording had been retrieved. This was sufficient to authenticate the recording. Any doubts about completeness went to weight, not admissibility.
The trial judge was not required to instruct the jury about lack of justification or excuse when there was no evidence of any justification or excuse for the assault in question.
State v. Phillips, __ N.C. App. __, __ S.E.2d __, 2026 WL 40538 (Jan. 7, 2026) (Haywood County) (Collins, J.). The defendant was convicted of stalking with a court order in effect (based on his repeated harassment of his neighbors), assault with a firearm on a law enforcement officer (as a result of pointing a gun at a deputy who approached the defendant while investigating the stalking), and other charges. (1) The trial court properly denied the defendant’s motion to dismiss the stalking charge for lack of a “plain and concise factual statement.” The indictment put the defendant on notice of the charge against him. Any defect in the indictment was not prejudicial, and “if Defendant did not understand the exact nature of the stalking charge filed against him, he should have filed a motion for a bill of particulars.” (2) The trial properly declined to include, in the jury instructions for the assault charge, the phrase “without justification or excuse.” Such an instruction must be given only when there is some evidence of justification or excuse, and there was none here. Defendant contended on appeal that “he could have been asleep and thus reacted involuntarily” when the deputy approached his vehicle, but the evidence at trial showed that his eyes were open and that the deputy loudly announced his approach.
Possession of multiple concealed firearms on a single occasion is a single offense. The trial judge did not improperly consider acquitted conduct during sentencing.
State v. Simpson, __ N.C. App. __, __ S.E.2d __, 2026 WL 40886 (Jan. 7, 2026) (Buncombe County) (Carpenter, J.). Officers investigating reports of drug activity at a public housing complex noticed the defendant and her sister smoking marijuana in the defendant’s car. The officers searched the vehicle, discovering two firearms, marijuana, a digital scale, and over $10,000 in cash. The defendant was charged with drug crimes and with two counts of carrying a concealed firearm, but a jury convicted her only of the gun offenses. The trial judge sentenced her to 30 days in jail, suspended in favor of 24 months of probation. She appealed. (1) The trial court erred by entering judgment on two counts of carrying a concealed firearm. Relying on prior cases involving possession of firearms on school grounds and possession of firearms by felons, the court held that when a defendant possesses multiple concealed firearms on a “single occasion,” the unit of prosecution is based on the number of incidents (one), not on the number of firearms. However, the error was not prejudicial because the trial judge consolidated the convictions. (2) The trial judge erred by sentencing the defendant to 24 months of supervised probation. Under G.S. 15A-1343.2(d), the maximum term of probation for a misdemeanor is 18 months unless the judge makes a specific finding that a longer period is necessary. The judge here made no such finding, so resentencing was required. (3) The trial judge did not err by improperly considering acquitted conduct during sentencing. In explaining her sentencing decision, the judge stated that she could not ignore the amount of money in the vehicle and the presence of a vacuum-sealed item. The defendant contended that the judge’s remarks alluded to the drug activity of which the defendant had been acquitted. The reviewing court “caution[ed] against considering acquitted conduct during sentencing,” but determined that the trial judge did not do so here. The judge was remarking on the defendant’s proximity to the items and what that revealed about her judgment and associations, and was not attributing possession of the items to the defendant.
A motor vehicle checkpoint operated under a template prepared by the Governor’s Highway Safety Program met statutory and constitutional standards. Officers had probable cause to search a vehicle based on the odor of marijuana.
State v. White, __ N.C. App. __, __ S.E.2d __, 2026 WL 40593 (Jan. 7, 2026) (Robeson County) (Murry, J.). The defendant was stopped at a motor vehicle checkpoint (or checking station) run by the Saint Pauls Police Department. His vehicle smelled of marijuana, so officers ordered him out of his vehicle. He said he had a gun in the car. Officers seized it and charged him with being a felon in possession of a firearm. He moved to suppress, arguing that the checkpoint was unlawful and that the odor of marijuana did not provide probable cause because it was indistinguishable from the odor of legal hemp. The trial judge denied the motions and the defendant pled guilty, reserving his right to appeal. (1) The checkpoint was lawful. The reviewing court rejected several challenges to the trial judge’s factual findings, determining that the checkpoint was approved in advance, in writing, by the Chief of Police, who signed an authorization form, and concluding that although the Saint Pauls Police Department did not have its own checkpoint policy, it operated under a template promulgated by the Governor’s Highway Safety Program. This arrangement satisfied G.S. 20-16.3A, which requires police checkpoints to “[o]perate under a written policy.” Furthermore, the checkpoint was constitutional because it served the legitimate primary purpose of detecting traffic violations, and because it satisfied the balancing test set forth in Brown v. Texas, 443 U.S. 47 (1979), with the public interest in traffic safety outweighing the checkpoint’s limited intrusion into individual liberty. (2) Following several of its own recent cases, the reviewing court rejected the defendant’s argument that the odor of marijuana does not provide probable cause to search because it cannot be distinguished from the odor of legal hemp. The court additionally noted that in conversation with officers, the defendant did not claim to possess legal hemp.
I will briefly note, but not fully summarize, two other published decisions:
In State v. Hodges, __ N.C. App. __, __ S.E.2d __, 2026 WL 40514 (Jan. 7, 2026) (Johnston County) (Zachary, J.), the court affirmed a defendant’s drug convictions. All the defendant’s arguments were dismissed on procedural grounds, so the case did not establish any substantive law.
In Hays v. Lewis, __ N.C. App. __, __ S.E.2d __, 2026 WL 40342 (Jan. 7, 2026) (Guilford County) (Stading, J.), the court considered the statement in G.S. 50B-3(b) that “[p]rotective orders entered pursuant to this Chapter shall be for a fixed period of time not to exceed one year.” The court ruled that the one-year limit applies to a DVPO entered after notice and an opportunity to be heard. The duration of any prior ex parte DVPO does not count towards the one-year period.
