This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on June 18, 2025. Previously, summaries were added to Smith’s Criminal Case Compendium, but due to personnel changes and resource limitations, that resource is no longer available. We will continue to post and archive new summaries here on the blog.
(1) Denial of motion to dismiss for immunity under G.S. 90-96.2 was proper where the facts did not support the conclusion that defendant overdosed; (2) the trial court properly accepted defendant’s ensuing guilty plea where the plea arrangement referenced a nonexistent right to appeal.
State v. Branham, ___ N.C. App. ___ (June 18, 2025) (Murry). In November of 2020, law enforcement found the defendant unconscious behind the wheel of a running vehicle after a 911 call. Officers woke the defendant up by tapping on the window, and conducted a probable cause search of the vehicle after observing a needle and plastic baggie with heroin on the driver’s seat. The defendant was indicted for felony possession of a Schedule I controlled substance and related drug paraphernalia. The defendant moved to dismiss the charges on a claim of immunity based on G.S. 90-96.2 (granting immunity for drug-related overdose victims in limited circumstances). After the motion was denied, the defendant pled guilty, and as part of his plea arrangement, sought to preserve the issue of the denial of the motion to dismiss and informed the court that he intended to appeal. After the trial court accepted his plea, the defendant gave oral notice of appeal.
Taking the procedural question first, the Court found that although the plea arrangement and the defendant’s assertions to the court were based on a right to appeal absent from statute, the plea was nonetheless the informed choice of the defendant. The court found in part that because criminal defendants do not have a right to an interlocutory appeal until after final judgment, motions to dismiss based on immunity from prosecution per G.S. 90-96.2 necessarily provide a right to appeal a denial of a preserved immunity claim. The Court also found that extraordinary circumstances in this case justified granting certiorari. The Court then reviewed the motion to dismiss de novo, and found that the trial court properly denied the motion. The Court first addressed the defendant’s argument that the trial court erred in finding the defendant did not overdose. Considering evidence that the defendant regained consciousness when law enforcement tapped on the vehicle window and evidence from law enforcement that the defendant was not exhibiting physical signs of an overdose, the Court found the defendant was not experiencing a “drug-related overdose” as required by G.S. 90-96.2. The Court also considered the remaining requirements for immunity, finding the defendant only met one of the four requirements for immunity.
Search warrant affidavit provided probable cause where it included underlying circumstances supporting the credibility and reliability of an informant. The ‘continuous pattern’ nature of the crime supported a one to two week delay between the criminal activity observed and the issuance of the warrant.
State v. Clark, ___ N.C. App. ___ (June 18, 2025) (Griffin). In May of 2022, a detective applied for a search warrant based on information obtained from a confidential informant. The search warrant affidavit specified that within the past ‘one or two weeks,’ the informant purchased schedule II-controlled substances multiple times from the defendant at the defendant’s residence in Kannapolis, NC. Upon executing the search warrant at the defendant’s residence, the defendant was indicted for felony trafficking in opium or heroin by possessing 28 grams or more of heroin (later superseded alleging fentanyl rather than heroin). The defendant moved to suppress the evidence collected on the basis that the search warrant affidavit was conclusory and stale. The trial court denied the motion, and the defendant pled guilty, preserving his right to appeal the denial of the suppression motion. The Court of Appeals first addressed whether the affidavit was conclusory. It found sufficient “underlying circumstances” were included, such as law enforcement personally verifying information provided by the informant, and multiple successful controlled buys. As a result, the statement in the affidavit that the informant was credible and reliable was not merely conclusory. The Court next addressed whether the affidavit was stale. The Court found due to the “continuous pattern” of drug deals between the defendant and informant, and that they all occurred at the same location, a delay of one to two weeks between the activity observed and the issuance of the warrant did not make the information stale. As a result, the search warrant was properly justified by probable cause.
On remand from the N.C. Supreme Court in light of Singleton, indictment charging defendant with continuing criminal enterprise was upheld where it contained a non-jurisdictional defect and did not prejudice the defendant.
State v. Cornwell, ___ N.C. App. ___ (June 18, 2025) (Freeman). In April of 2024, the Court of Appeals vacated the defendant’s conviction for continuing criminal enterprise (CCE) because the indictment was insufficient to support subject matter jurisdiction for that charge. The State petitioned for discretionary review with the N.C. Supreme Court, which was allowed “for the limited purpose of remanding this case to the Court of Appeals for reconsideration in light of this Court’s decision in State v. Singleton,” which had just been published. The issue: the indictment charging the defendant with CCE did not separately allege each underlying offense as an element of CCE, as required by State v. Guffey, 292 N.C. App. 179 (2024). On remand, the Court found that while the indictment was still defective, it did not wholly fail to allege a crime, and as a result the defect was non-jurisdictional and did not deprive the trial court of subject-matter jurisdiction. Next, the Court considered whether the non-jurisdictional defect prejudiced the defendant. The Court found that the defect did not implicate constitutional requirements, and as a result the defendant would need to show a reasonable possibility that, had the defect not existed, a different result would have been reached at the end of the trial. Based on the defendant not moving for a bill of particulars, not indicating any confusion about the charges during trial, and the overwhelming nature of the evidence, the Court found the defect did not prejudice the defendant.
(1) Hearsay statements properly admitted as excited utterances where the startling event was seeing an unexpected balance in a bank account; (2) motion to dismiss for insufficient evidence properly denied.
State v. Fraley, ___ N.C. App. ___ (June 18, 2025) (Carpenter). In 2016, the defendant and her husband began caring for her husband’s mother and both became her power of attorney. At the time, the defendant’s mother-in-law had been diagnosed with dementia and needed assistance managing medical appointments, finances, mail, and taxes. In September of 2017, the defendant’s mother-in-law opened mail from her bank and exclaimed “someone is taking money out of my bank account;” “I want it back now;” and “[I] never told them nor gave permission to anyone to withdraw money from [my] account.” The mother-in-law passed away in 2019. After an investigation by family and law enforcement, the defendant was indicted in 2020 for two counts of obtaining property valued at $100,000 or more by false pretenses, two counts of exploitation of an older adult of more than $100,000, one count of obtaining property valued at more than $20,000 or more by false pretenses, and one count of exploitation of an older adult of less than $20,000. During trial, the court determined the mother-in-law’s statements were hearsay, and admitted them as excited utterances. The defendant was convicted of two counts of exploitation of an older adult of more than $100,000 and one count of exploitation of an older adult of less than $20,000. The defendant appealed, arguing the statements did not qualify as excited utterances and that the trial court erred by denying the defendant’s motion to dismiss.
The Court first addressed the defendant’s hearsay argument. Because the defendant did not challenge the spontaneity of the statements, the only question was whether the statements were caused by a sufficiently startling event. Relying on precedent that whether an event is sufficiently startling to the declarant is primarily a subjective inquiry, the Court found that the context of the declarant’s financial situation, the fact that the declarant discovered a large sum of money missing at once, and the declarant’s visible emotion all demonstrated the suspension of her reflective thought. As a result, it met the standard for a sufficiently startling event. The Court next addressed the defendant’s argument that the trial court improperly denied her motion to dismiss for insufficient evidence that she obtained the funds “knowingly, by deception.” The Court pointed to the mother-in-law’s statements, evidence that the defendant claimed she was filing taxes for the mother-in-law but had not done so, and the defendant’s admission that she copied her mother-in-law’s signature on withdrawal forms to conclude that the State presented sufficient evidence of knowing and deceptive conduct.
(1) The trial court had jurisdiction to revoke probation where the violation report mostly described criminal conduct; (2) the evidence was insufficient to establish a probation violation where the only evidence provided occurred two months after the alleged violation date and did not amount to a criminal offense.
State v. Gault, ___ N.C. App. ___ (June 18, 2025) (Stroud). The defendant pled guilty in July of 2022 to second-degree exploitation of a minor and disseminating obscenity. He was sentenced to 20 to 84 months imprisonment, suspended for 36 months of supervised probation. On March 21, 2023, the defendant’s supervising probation officer filed a violation report, alleging that the defendant willfully violated “General Statute 15A-1343(b)(1) ‘Commit no criminal offense in any jurisdiction’ in that . . . DEFENDANT WAS CHARGED WITH A FAILURE TO REGISTER IN REGARDS TO HAVING SOCIAL MEDIA CITE (sic) NOT REGISTERED WITH THE SHERIFF’S DEPARTMENT ON 1/18/23. THIS IS A VIOLATION OF . . . DEFENDANT’S PROBATION.” At the probation violation hearing, another probation officer testified that he and the defendant’s probation officer visited the defendant “sometime in March” and found evidence that the defendant was using social media sites which the defendant had not disclosed to the sheriff’s department. The criminal offense alleged in the violation report (G.S. 14-208.11(a)(10)) required the defendant to inform the sheriff of any new or changes to existing online identifiers within 10 days.
Addressing the defendant’s first argument, the Court found that the violation report properly alleged a violation of the probation condition that the defendant commit no new criminal offense. This was based on the inclusion of the statutory reference to G.S. 15A-1343(b)(1), the freeform text included in the allegation, and the relaxed requirements for probation violation allegations. Addressing the defendant’s second argument, the Court agreed that there was insufficient evidence to show that the defendant committed a new criminal offense. The Court first found that it received no evidence about what occurred on January 18, 2023, because all the testimony was based on the interaction in March, and there were no efforts to reconcile the discrepancy. The Court further found that the use of social media sites, on its own, was insufficient to show that the defendant had failed to register any online identifiers with the sheriff within 10 days of creating or changing any identifiers without any information about the specific date of the observations by probation and when the 10 days would have started or ended. As a result, the Court reversed the trial court’s judgment revoking the defendant’s probation.
(1) Defendant’s motion to dismiss was properly denied where the State provided sufficient evidence of first-degree murder; (2) the trial court did not prejudicially err in admitting evidence from a 2017 incident to establish the defendant’s identity; (3) no error where the trial court did not intervene during the State’s closing argument.
State v. Solomon, ___ N.C. App. ___ (June 18, 2025) (Freeman). In September of 2019, the defendant was indicted for two counts of first-degree murder in a drive-by shooting. During trial, the State’s evidence tended to show, in part, that the defendant was in repeated contact with one of the victims before the shooting, the last calls from one victim were to the defendant, the defendant’s ankle monitor showed he left his house thirty minutes before the shooting, and he returned about twenty minutes after the shooting, the defendant was a passenger in the suspect vehicle shortly before the shooting, the defendant’s cell phone was within one or two blocks of the crime scene at the time of the shooting, and the defendant had incriminating digital evidence on his cell phone after the shooting. Over the defendant’s objection, the State also introduced evidence of a drive-by shooting in 2017 in order to establish the defendant’s identity. The State also referenced this evidence during closing arguments by stating the defendant “likes to shoot out of the backs of cars at people, like he did” in 2017.
The Court first addressed the defendant’s argument that the trial court erred by denying his motion to dismiss. Noting that substantial evidence required to survive a motion to dismiss only requires more than a scintilla, the Court concluded that the evidence provided by witnesses, in addition to video surveillance, cell phone analysis, ankle monitoring data, and internet search history, was sufficient to justify the denial of the defendant’s motion to dismiss. The Court then addressed the defendant’s argument that the trial court improperly admitted evidence of a drive-by shooting in 2017. The Court first found that the 2017 incident met the temporal proximity requirement for inclusion under Rule 404(b). In addressing the similarity requirement, the Court found merit in the State’s argument that the circumstances were sufficiently unique to the defendant, and found merit in the defendant’s argument that the circumstances were merely inherent to most crimes of this type (drive-by shootings). Leaving this question unanswered, the Court found that due to the overwhelming evidence of guilt, any error would be harmless, and as a result the trial court did not prejudicially err by admitting the evidence. Finally, the Court addressed the defendant’s argument that the court reversibly erred by failing to intervene ex mero motu during the State’s closing argument. The Court found that the statement referring to the 2017 incident did not rise to the level of gross impropriety, in part due to the prosecutor’s repeated cautions to the jury that the incident was to be considered solely for the purpose of identity and that the statement was not so overreaching as to shift the focus of the jury.
(1) Defendant’s motion to dismiss second-degree murder was properly denied where the State provided evidence of malice; (2) the trial court correctly sentenced the defendant as a Class B1 felon where there was no evidence presented of ‘depraved heart’ malice; (3) motion to dismiss assault with a deadly weapon with intent to kill inflicting serious injury properly denied where the State provided evidence of intent to kill.
State v. Swinson, ___ N.C. App. ___ (June 18, 2025) (Freeman). In October of 2020, the defendant got into a physical altercation involving four other individuals outside of the defendant’s home. During the fight, the defendant shot and killed one individual, and shot another individual, grazing their forehead and causing them to bleed. The defendant was indicted for first-degree murder, attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and assault with a deadly weapon inflicting serious injury. During trial, evidence from the State and defendant differed as to how the shootings occurred. The State’s evidence tended to show the defendant intentionally aimed and fired at the two victims, and the defendant’s evidence tended to show that the firearm was discharged unintentionally while in the defendant’s hand during a physical struggle. The defendant was convicted of second-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and assault with a deadly weapon inflicting serious injury.
The defendant first argued the State did not present sufficient evidence of malice to sustain a conviction of second-degree murder. The Court found, viewing the evidence in the light most favorable to the State, that the testimony of three witnesses that the defendant raised the gun and shot the victim was sufficient to provide the evidence necessary to survive a motion to dismiss. The defendant then argued that because the jury was provided with a general verdict form, the resulting ambiguity as to which theory of malice the jury found required her to be sentenced as a Class B2 felon, rather than Class B1. The Court, relying on precedent that among the three theories of malice, a court must sentence a person as a Class B2 felon only if there is no evidence that the defendant acted with anything other than ‘depraved heart’ malice, disagreed. The Court found that because depraved heart malice requires ‘reckless use’ of a firearm, and neither the State nor defendant’s version of events supported reckless use, the jury could not have convicted under a depraved heart theory of malice. As a result, the trial court correctly sentenced the defendant as a Class B1 felon. Finally, the Court addressed the defendant’s argument that the State did not present sufficient evidence of an intent to kill. The Court found, viewing the evidence in the light most favorable to the State, the testimony presented that the defendant raised a loaded and cocked gun and shot at the victim was sufficient evidence of intent to kill to deny the motion to dismiss.
(1) Jury instruction for second-degree rape containing an alternate element not present in the indictment was proper; (2) there was sufficient evidence the victim was incapable of consent and the defendant knew or should have known of such incapacity; (3) admission of lab results without testimony by the analyst conducting the testing did not violate defendant’s confrontation rights; (4) any violation of the defendant’s confrontation rights amounted to harmless error.
State v. Tate, ___ N.C. App. ___ (June 18, 2025) (Stroud). The defendant was charged with second-degree rape from a 2011 incident where the victim reported she was raped after attending a pool party. The victim reported she had been drinking that afternoon and could not remember portions of the day, and when she fully regained awareness a man was having sex with her. She was able to escape and went to the hospital, where a nurse gathered samples and evidence. The evidence was untested until 2017, when it was sent to Sorenson Labs, a private DNA testing facility in Utah. Sorenson’s analysis was then sent to the North Carolina State Crime Lab in 2018. The State Crime Lab reviewed the data, extracted the male portion of the DNA, and entered it into the State’s DNA database. In 2019 a detective was assigned to the case, and saw the defendant’s DNA come back as an initial match. The detective obtained a search warrant for the defendant’s DNA and obtained a cheek swab, blood, and urine samples from the defendant. After additional testing, the defendant was indicted for one count of second-degree rape in 2021. Trial began and the jury returned a guilty verdict in early 2023.
The defendant first argued the second-degree rape jury instruction violated his right to a unanimous jury verdict. The defendant’s indictment indicated the “defendant knew that [the victim] was mentally incapacitated and physically helpless.” The trial court instructed the jury “to find . . . Defendant guilty of this offense the State must prove . . . Defendant knew or should have known that the alleged victim was mentally incapacitated and/or physically helpless.” The defendant argued that by including the constructive knowledge element in the jury instruction, the trial court violated his right to a unanimous verdict by allowing the jury to potentially convict him of an offense not included in the indictment. The Court disagreed, based on precedent upholding a second-degree rape conviction where an indictment did not specifically allege the element of knowledge (State v. Singleton, 386 N.C. 183 (2024)) and based on precedent that disjunctive instructions are permitted where the disjunctive elements are not separate criminal acts, but instead are alternative avenues to conclude the existence of a single element (State v. Hartness, 326 N.C. 561 (1990)).
The defendant also argued there was insufficient evidence the victim was mentally incapable of consent and insufficient evidence the defendant knew or should have known of her mental incapacity. The Court held that based on the victim’s testimony, statements from the defendant to investigators describing the victim as intoxicated and the victim’s alcohol levels collected by the hospital, there was sufficient evidence for a reasonable jury to find that the victim was incapable of consent. The Court further held that based on the defendant’s statements to investigators describing the victim as “drunk” and “wasted” the night of the incident, there was sufficient evidence that the defendant knew or should have known about this mental incapacity.
The defendant’s final argument was that the trial court violated his right to confrontation by improperly allowing the DNA results generated by Sorenson Labs into evidence without requiring testimony from the analyst who performed the testing. Two employees of the North Carolina State Crime Laboratory testified, Cortney Cowan and Tricia Daniels. As to Ms. Cowan’s testimony, the Court found the issue was not properly preserved for appellate review because the objections at trial lacked sufficiently specific grounds, and the defendant did not specifically and distinctly contend the alleged error constituted plain error. As to Ms. Daniels’ testimony, the Court applied the two-step approach outlined by Smith v. Arizona, 602 U.S. 779 (2024) to determine whether the testimony implicated the Confrontation Clause: first, the testimony must be testimonial; second, it must be hearsay evidence. The Court addressed hearsay first, and found that Ms. Daniels’ testimony on the DNA profile generated by Sorenson Labs was hearsay because it was offered for the truth of the results obtained. The Court then considered whether the evidence was testimonial based on a review of “the principle reason” the Sorenson test was made. The Sorenson Labs test was limited in scope to identify the presence of any DNA other than the victim’s, rather than an attempt to identify a particular suspect. Therefore, the Court concluded the results were not generated solely to aid in the police investigation, and that the profile provided by Sorenson was not inherently inculpatory, but instead tended to exculpate all but one of the people in the world. As a result, the Court found that Ms. Daniels’ testimony of the Sorenson results was not testimonial, and therefore did not implicate the Confrontation Clause. The Court further held that as a second and independent basis for their decision, if the defendant’s confrontation rights were violated, it amounted to harmless error due to other competent overwhelming evidence of the defendant’s guilt.