This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on September 16, 2026.
Trial court did not err by finding a violation of conditions of probation based on Defendant’s admission to failure to pay; insufficient evidence supported the findings that Defendant committed new criminal offenses and failed to report as directed; trial court did not err by imposing a five-month period of incarceration as an incident of special probation.
State v. Allen, No. COA24-1010 (N.C. Ct. App. Sept. 16, 2026) (Durham County). On April 18, 2022, Defendant pled guilty to a number of offenses, including felony larceny and fleeing to elude. The trial court sentenced Defendant to a minimum 11, maximum 23 months. That sentence was suspended, and Defendant was placed on supervised probation for a period of 24 months, to begin upon her release from incarceration in another case. On Feb. 6, 2024, Defendant’s probation officer filed reports alleging Defendant had violated the terms of her probation by, among other things, (1) failing to make payments toward restitution, costs, and fees; (2) failing to report as directed, and (3) committing new criminal offenses. The matter came on for a hearing on March 26, 2024. At the hearing, Defendant admitted to failing to pay any money; defense counsel noted Defendant had been incarcerated for some time. The trial court found Defendant had violated the conditions of probation as alleged and modified the terms of probation: it extended the period of probation for 24 months and ordered Defendant to serve five months of special probation. Defendant appealed. Defendant then filed a motion for appropriate relief (MAR) with the Court of Appeals.
In her direct appeal, Defendant argued the trial court erred by finding that she willfully violated the terms of her probation. In particular, she argued there was insufficient evidence (1) that she committed new criminal offenses or (2) that she failed to report as directed. Defendant also argued (3) the trial court erred by finding a willful failure to pay without considering her ability to pay.
Addressing the third argument first, the Court of Appeals posited that the burden is on the probationer to offer evidence of inability to pay; but when a probationer presents evidence of inability to pay, the trial court must make findings of fact showing it considered that evidence. Here, the Court of Appeals noted, Defendant admitted to the alleged violation of failure to make payments. As for defense counsel’s comment that Defendant had been incarcerated for some time, the Court of Appeals observed that the statements of counsel do not qualify as competent evidence. As for the probation officer’s purported acknowledgment of Defendant’s inability to pay, the Court of Appeals found no such statement in the record. The Court of Appeals concluded that the trial court did not err by finding a willful violation of probation. Given Defendant’s admissions, the trial court did not err by modifying the terms of probation.
Summarily addressing Defendant’s first and second arguments, the Court of Appeals agreed that there was insufficient evidence Defendant had committed new criminal offenses or failed to report as directed. Consequently, the Court of Appeals vacated the portion of the trial court’s order finding Defendant admitted to these allegations. The Court of Appeals otherwise affirmed the order.
In her MAR, Defendant argued the trial court erred by imposing a five-month period of imprisonment as an incident of special probation. When a defendant has violated a condition of probation, the trial court may modify the probation to place the defendant on special probation and require that the defendant submit to a period of imprisonment. G.S. 15A-1344(e). Such confinement may not exceed one-fourth the maximum sentence, and no confinement other than an activated suspended sentence may be required beyond the period of probation or beyond two years of the time the special probation is imposed, whichever comes first. Id. Here, before Defendant’s probation expired on April 18, 2024, the trial court extended her probation for 24 months and ordered Defendant to serve a five-month period of imprisonment. The Court of Appeals concluded that Defendant’s admission to a violation of a condition of her probation authorized the trial court to impose special probation, and that the five-month period of imprisonment complied with G.S. 15A-1344(e). The Court of Appeals rejected Defendant’s reliance on G.S. 15A-1351, explaining that that statute applies when the trial court imposes special probation at the time of sentencing, whereas G.S. 15A-1344 applies when the trial court imposes special probation in response to a probationer’s violation of a condition of probation. The Court of Appeals also rejected Defendant’s reliance on caselaw construing G.S. 15A-1351, explaining that it was bound by the plain language of G.S. 15A-1344(e). Accordingly, the Court of Appeals denied Defendant’s MAR.
Defendant was entitled to a new trial on first-degree murder based on error in the jury instructions on felony murder (one judge concurring in the result only and one dissenting).
State v. Johnson, No. COA25-1000 (N.C. Ct. App. Sept. 16, 2026) (Wake County). On November 5, 2022, Defendant, a convicted felon, had an altercation with his girlfriend at her house in Raleigh. Her cousin, Jermiller Kernny, arrived at the house and attempted to intervene. As Defendant left, Kernny pushed Defendant down, dislodging a firearm from his pocket. Defendant grabbed the gun and shot Kernny. Kernny died as a result of the single gunshot wound to the chest. Defendant was charged with murder and possession of a firearm by a felon. The matter came on for trial by jury in April 2025. The trial court instructed the jury on first-degree murder based on premeditation and deliberation. Over objection, the trial court also instructed on felony murder with possession of a firearm by a felon as the underlying felony. Defendant was convicted of felony murder and possession of a firearm by a felon. The trial court arrested judgment on the possession of a firearm by a felon. For murder, Defendant was sentenced to life without parole. Defendant appealed.
Before the Court of Appeals, Defendant argued (1) that possession of a firearm by a felon is “categorically excluded” as an underlying felony for felony murder, and (2) the felony murder instruction violated his due process right to adequate notice of the charges against him.
Addressing the first issue, Judge Arrowood noted that first-degree murder includes any killing committed during the perpetration of any arson, rape or sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon. G.S. 14-17. Judge Arrowood recognized that felony murder is committed when a killing results from a defendant’s commission of another felony with the use of a deadly weapon; he wrestled with whether the statute is satisfied when the other felony does not involve a defendant’s use but merely his possession of a firearm. Judge Arrowood concluded that possession of a firearm by a felon, albeit not categorically excluded, cannot support a conviction for felony murder “unless there is some other interrelated felony in which [the defendant] uses the firearm.” Slip Op. p. 11.
As to the second issue, Judge Arrowood noted that Defendant consented to certain admissions: (1) that he was a felon, (2) that he possessed a firearm, and (3) that he used the firearm causing the victim’s death. Judge Arrowood said the trial court accepted these admissions “without providing notice of or the opportunity to prepare for the consequences.” Slip Op. p. 17. The trial court then instructed the jury that Defendant was guilty of felony murder if it found (1) that defendant committed possession of a firearm by a felon, (2) that while committing that offense, the defendant killed the victim, and (3) that the defendant’s act was the proximate cause of death. Judge Arrowood said the instructions on felony murder “transformed” Defendant’s defense into an admission to every element, making conviction a foregone conclusion. Slip Op. p. 20. Judge Arrowood concluded that the trial court erred in its instructions “because Judge Ridgeway charged a novel felony murder charge sua sponte at the close of evidence, despite knowing, both from his earlier Harbison inquiries and the trial as a whole, that by substantially altering the bill of indictment in this way, he would blindside defendant.” Slip Op. p. 21. Finding that the instructions violated Defendant’s right to due process, the Court of Appeals awarded a new trial.
Judge Stroud concurred in the result only, stating that the prejudicial error arose from the timing of the trial court’s announcement of its intent to instruct on felony murder and Defendant’s lack of opportunity to prepare for trial, not from any error of law in the jury instructions.
Judge Tyson concurred in part and dissented in part. He agreed that possession of a firearm by a felon can serve as the predicate felony for felony murder. Judge Tyson would hold, however, that the trial court’s instructing the jury on felony murder did not violate Defendant’s right to due process. According to Judge Tyson, the plurality granted a new trial because (1) the trial court’s Harbison inquiry was inadequate, and (2) the trial court violated protections against ex post facto laws. As to the Harbison inquiry, Judge Tyson concluded that Defendant could not show prejudice from the stipulations and admissions to necessitate a new trial. As to the ex post facto issue, Judge Tyson concluded that the trial court merely applied straightforward statutes of long standing.
Defendant lacked standing to contest search of someone else’s cell phone; trial court did not err by admitting witness’s prior unsworn statements; trial court did not err by admitting expert testimony on firearm toolmark analysis and glass analysis; trial court did not err by denying request for a special instruction on expert testimony; trial court did not plainly err by instructing that Defendant had the burden to prove third party guilt via recent possession; no cumulative error; trial court erred by entering a civil judgment on attorneys’ fees without affording Defendant an opportunity to be heard (one judge concurring in result only).
State v. Miller, No. COA25-525 (N.C. Ct. App. Sept. 16, 2026) (Pender County). On Nov. 8, 2020, Defendant and his nephew William Smith drove a white Chevy Malibu owned by Defendant’s girlfriend Kim Buentello to the home of William Coley and Destiny Greene, who was seven months pregnant. Defendant knocked on the door, and Coley exited the house carrying a Glock with an extended clip and got into the Malibu with Defendant. Defendant shot Coley in the head, killing him, and then dragged the body into the woods. Defendant then went into the house and shot Greene in the head, killing her and her unborn child. Defendant exited the home carrying a black Draco, and Defendant and Smith drove to the home of Defendant’s half-brother, Bilal Jenkins. Upon Jenkins’s advice, the three men burned the clothes Defendant and Smith had been wearing. Defendant then cleaned the Malibu and finished breaking out the window. Smith sold the Draco to Torrence Shaw for three bricks of heroin. Defendant sold the Glock to Nashahala King. King later told police the Glock could be found at a certain address, and police recovered the gun.
In August 2021 and January 2022, Defendant was indicted for three counts of first-degree murder. The matter came on for trial by jury in October 2023. Defendant was convicted of three counts of murder, and the trial court sentenced him to three consecutive life sentences. Defendant appealed.
Before the Court of Appeals, Defendant argued the trial court erred by (1) denying his motion to suppress evidence obtained from Buentello’s cellular phone, (2) permitting the State to impeach Jenkins through extrinsic evidence, (3) admitting expert testimony regarding firearm toolmark analysis and glass analysis, (4) denying his request for a special instruction on expert testimony, (5) instructing that Defendant had the burden to prove third party guilt, (6) cumulative error, and (7) entering a civil judgment for attorneys’ fees without giving him an opportunity to be heard.
As to the first issue, Defendant argued the trial court erred by denying his motion to suppress evidence obtained from Buentello’s cell phone. A search of Buentello’s cell phone revealed that someone had conducted a Google search for “car glass replacement” on Nov. 8, 2020. The Court of Appeals noted that a person’s Fourth Amendment right to be free from unreasonable searches and seizures is a personal right, and only those persons whose rights have been infringed may assert the protection. Hence, whether a person has standing to contest a search turns on whether he has a legitimate expectation of privacy in the place invaded. Here, Defendant failed to show he had a reasonable expectation of privacy in Buentello’s cell phone. The Court of Appeals concluded Defendant lacked standing to challenge the seizure of the phone, and the trial court did not err by denying his motion to suppress.
As to the second issue, Defendant argued the trial court erred under Rules of Evidence 607 and 403 by allowing the State, while Jenkins was testifying, to play videos of Jenkins's police interviews. During the interview, Jenkins identified Defendant as the perpetrator. When called by the State to testify at trial, however, Jenkins testified that he could not recall the details of the interview. Over objection, the trial court allowed the State to play videos of Jenkins’s interviews for the limited purpose of impeachment or corroboration. Under Rule 607, the credibility of a witness may be attacked by any party, including the party calling him. G.S. 8C-1, Rule 607. While Rule 607 allows a party to impeach its own witness on a material matter with a prior inconsistent statement, such impeachment is impermissible when used as a subterfuge to get evidence before the jury which is otherwise inadmissible. Here, the Court of Appeals found several factors favoring admission of the evidence: (1) Jenkins never denied making the statements but testified only that he could not recall the exact statements he made to police; (2) there was no evidence indicating that the State knew prior to trial that Jenkins would refuse to answer questions on the stand; and (3) the trial court instructed the jury regarding impeachment or corroboration by prior statement after the interviews were published to the jury. The Court of Appeals concluded that the trial court did not err under Rule 607 by admitting the evidence. Under Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. G.S. 8C-1, Rule 403. Here, the Court of Appeals found that Jenkins’s testimony “corroborated several essential areas” of the State’s case. Slip Op. p. 25. It concluded that Defendant failed to show that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.
As to the third issue, Defendant argued the trial court erred by admitting expert testimony on firearm toolmark analysis and glass analysis. At trial, one State’s expert linked the Glock pistol recovered by police on King’s directions to shell casings found at the crime scene. Another State’s expert opined that glass shards recovered from Jenkins’s driveway were consistent with glass recovered from the Malibu. Under Rule 702, a witness qualified as an expert may testify in the form of an opinion if (1) the testimony is based upon 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. G.S. 8C-1, Rule 702. In State v. Miller, 275 N.C. App. 843 (2020), the Court of Appeals upheld an admission of expert testimony regarding firearm and toolmark analysis. Here, Defendant presented the trial court with studies and expert testimony contesting the reliability of firearm and toolmark identification analysis. As in Miller (2020), the trial court conducted a lengthy voir dire, considered the studies and the testimony of Defendant’s experts, and weighed those against the testimony of the State’s expert, ultimately determining the State’s expert’s “testimony was both reliable and properly applied.” Slip Op. p. 34. The Court of Appeals concluded the trial court did not err under Rule 702 by admitting the expert testimony regarding firearm and toolmark identification analysis. Defendant also presented the trial court with expert testimony contesting the glass analysis. The trial court conducted a voir dire, during which the State’s expert explained her methodology and its application. The Court of Appeals concluded the trial court did not err under Rule 702 by admitting the expert testimony regarding glass analysis.
As to the fourth issue, Defendant argued the trial court erred by denying his request to modify the pattern jury instruction on expert witness testimony to state that the expert witnesses “purport[ed] to have specialized skill or knowledge.” Slip Op. p. 39. The trial court denied Defendant’s request and instructed the jury in accordance with N.C.P.I. Crim. 104.94. The Court of Appeals said the pattern instruction accurately reflects applicable law, and nothing in the instruction impermissibly vouched for the expert witnesses. Hence, the trial court did not err by denying Defendant’s request.
As to the fifth issue, Defendant argued the trial court plainly erred by instructing the jury that Defendant had the burden to prove third-party guilt via recent possession. The doctrine of recent possession allows the jury to infer that the possessor of recently stolen property stole the property. Here, the trial court instructed the jury that the State had the burden to prove Defendant’s guilt via recent possession. It also instructed the jury that Defendant had the burden to prove third-party guilt via recent possession. The Court of Appeals found no precedent for any affirmative defense of third-party guilt via recent possession. Assuming the instruction was erroneous, the Court of Appeals nevertheless found that Defendant failed to show the error probably affected the verdict. The Court of Appeals likewise rejected Defendant’s argument that defense counsel was ineffective for failing to object to the instruction, finding that Defendant failed to show prejudice.
As to the sixth issue, given its resolution of the other issues, the Court of Appeals concluded that Defendant failed to demonstrate cumulative error.
As to the seventh issue, Defendant argued the trial court erred by entering a judgment for attorneys’ fees without giving him an opportunity to be heard. Before imposing a judgment for attorneys’ fees, the trial court must afford a defendant an opportunity to be heard. Here, there was no sign Defendant was given an opportunity to be heard on attorneys’ fees. The Court of Appeals vacated the civil attorneys’ fees orders and remanded for a new hearing on attorneys’ fees and costs.
No error in denying Defendant’s midtrial request to represent himself; Court of Appeals denied petition for certiorari seeking review of civil judgment imposing attorneys’ fees.
State v. Parker, COA25-545 (N.C. Ct. App. Sept. 16, 2026) (Wilson County) On July 30, 2023, police conducted a traffic stop on a gold Infiniti SUV headed toward Landfill Road. Defendant was a back-seat passenger in the SUV. Behind the back seat of the vehicle police found a shotgun.
On March 11, 2024, Defendant was indicted for possession of a firearm by a felon. The matter came on for trial by jury in November 2024. In the middle of trial, Defendant indicated that he wished for defense counsel to withdraw. The trial court excused the jury and conducted a colloquy with Defendant personally. Defendant indicated he wished to represent himself. The trial court told Defendant that was not an option: “Once you begin the trial with a lawyer, you have to continue the trial with your lawyer.” Slip Op. p. 3. Defendant was convicted by a jury of possession of a firearm by a felon. The trial court sentenced Defendant and ordered that counsel fees be paid as a civil judgment. Defendant gave oral notice of appeal from the criminal judgment, and he filed a petition for certiorari with the Court of Appeals seeking review of the civil judgment.
Before the Court of Appeals, Defendant argued the trial court erred by (1) denying his request to represent himself, and (2) entering a civil judgment for attorneys’ fees without adequate notice.
As to the first issue, a criminal defendant has a constitutional right to represent himself at trial. After trial has begun with counsel, the decision of whether to allow a defendant to proceed pro se rests in the trial court’s sound discretion. It is error for the trial court not to exercise its discretion in the erroneous belief that it has no discretion. A reviewing court must determine whether it is clear from the record that the trial court was aware of its authority to exercise discretion. Here, the trial court made certain statements which, according to Defendant, indicated that the trial court believed it lacked discretion to grant Defendant’s request to represent himself midtrial. The Court of Appeals construed the trial court’s statements as limitations on the defendant, not on the court. It found no affirmative evidence that the trial court failed to exercise its discretion. The Court of Appeals concluded the trial court did not err by denying Defendant’s request to represent himself.
As to the second issue, the Court of Appeals noted that Defendant was present when the trial court imposed the attorneys’ fees, discussed the amount with defense counsel, and entered the judgment in open court. It noted that Defendant failed to enter written notice of appeal but sought review of the civil judgment by petition for certiorari. The Court of Appeals found that Defendant failed to demonstrate substantial harm, considerable waste of judicial resources, or wide-reaching issues of justice and liberty at stake, and it denied Defendant’s petition for certiorari.
