This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on September 17, 2025.
Trial court erred by conducting summary criminal contempt proceedings when the defendant’s conduct constituted indirect criminal contempt.
State v. Brinkley, No. COA24-681 (N.C. Ct. App. Sept. 17, 2025) (Pasquotank County). In April 2023, the defendant pled guilty to voluntary manslaughter and was sentenced to a minimum 58, maximum 82 months. The trial court ordered him to report to jail on June 12, 2023. The defendant failed to report to jail then, and the trial court issued an order for his arrest. He was arrested on January 2, 2024. On January 16, 2024, the trial court, pursuant to a summary contempt proceeding, held the defendant in direct criminal contempt and sentenced him to an additional thirty days.
The Court of Appeals granted the defendant’s petition for certiorari to address the question of whether the trial court erred by holding him in direct criminal contempt. Summary contempt proceedings are permissible for direct criminal contempt. G.S. 5A-14(a). Direct criminal contempt occurs if the act is committed within the sight or hearing of the presiding judge and in, or in the immediate proximity to, the room where proceedings are being held before a court. G.S. 5A-13(a).
Here, the defendant’s willful failure to comply with the trial court’s order constituted an act of criminal contempt. But his failure to report occurred outside of the presence of the court. Hence, the defendant’s conduct did not constitute direct criminal contempt (as the State conceded), and the trial court consequently erred by conducting summary contempt proceedings. The Court of Appeals vacated the trial court’s order and remanded for further proceedings.
Trial court did not err by not instituting a competency hearing sua sponte; trial court did not err by finding that the defendant waived his right to be present at trial; trial court did not err by denying the defendant’s request for substitute counsel.
State v. Chafen, No. COA24-1030 (N.C. Ct. App. Sept. 17, 2025) (Mecklenburg County). Around 11 p.m. on May 12, 2023, the defendant called 911 from the waiting room at Novant-Presbyterian Hospital, telling the 911 operator that he wanted to be taken to another hospital. Law enforcement officers responding to the scene found the defendant yelling, cursing, and being uncooperative. Around 1 a.m., police responded to a second 911 call from the defendant’s location. The defendant told officers he had been hit by a car, but officers concluded that nobody had actually been struck by a vehicle. Around 3 a.m., police responded to a third call from the defendant’s location. This time, the hospital requested assistance with removing the defendant from the premises because he refused to leave. An officer attempted to arrest the defendant for trespassing, but he did not submit. Officers carried the defendant to a patrol vehicle, where the defendant kicked an officer in the head twice.
In December 2023, the defendant was convicted in district court of assault on a government official, resisting a public officer, second-degree trespass, and misuse of the 911 system. He appealed to the superior court. At his trial in superior court, which began on March 19, 2024, the State proceeded only on the assault charge. After a jury was empaneled, the defendant sought to discharge his court-appointed attorney and requested substitute counsel. The trial court refused to allow the defendant to discharge counsel, whereupon he refused to participate in his trial, and he was taken into custody under a secured bond. After the lunch recess, the defendant refused to return to the courtroom and refused to speak with defense counsel. The trial court found that the defendant waived his right to be present, and the State proceeded to introduce evidence. The defendant was convicted of assault on a government official and sentenced to 120 days. He appealed.
Before the Court of Appeals, the defendant argued the trial court erred by (1) failing to order a competency hearing, (2) ruling he waived his right to be present at trial, and (3) failing to conduct a sufficient inquiry into his request for substitute counsel.
Addressing the first issue, the Court of Appeals posited that the trial court has a constitutional duty to institute a competency hearing sua sponte when there is substantial evidence indicating the accused may be mentally incompetent. Here, the Court of Appeals found insufficient evidence to warrant the initiation of a competency hearing by the trial court. It noted that the defendant was able to consult with his lawyer and had a rational understanding of the proceedings against him. The Court of Appeals rejected the defendant’s reliance on the following circumstances: the defendant was homeless; he said he did not care what happened to him; he informed the trial court at sentencing about previous mental health evaluations; and he volunteered information at sentencing about a prior conviction. The defendant’s refusal, it said, “to participate in his trial or with his court-appointed attorney does not constitute substantial evidence requiring the trial court to institute a competency hearing on its own accord.” Slip Op. p. 16.
Addressing the second issue, the Court of Appeals said that a defendant may waive the right to be present at his trial through his voluntary absence, so long as he is aware of the processes taking place and of his right and obligation to be present. Here, the defendant argued the trial court erred by finding he waived his right to be present because it failed first to determine whether he was competent to stand trial. But, as the Court of Appeals found insufficient evidence to warrant a sua sponte competency hearing, it likewise found the defendant’s argument regarding waiver of his right to be present meritless. Further, it noted the defendant voluntarily absented himself from the courtroom, though he was aware of the processes taking place and his obligation to be present.
Addressing the third issue, the Court of Appeals declared that to warrant a substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict. Given a request for substitute counsel, the trial court must make sufficient inquiry into the defendant’s reasons to the extent necessary to determine whether the defendant will receive effective assistance of counsel. Here, the Court of Appeals said, the trial court inquired into the defendant’s request to the extent necessary to determine whether he would receive effective assistance. It noted that the trial court’s conversation with the defendant upon his request for substitute counsel revealed that the nature of the conflict was not such as would render counsel ineffective. Once it became apparent that counsel was competent and the assistance of counsel was not ineffective, the trial court was not required to delve any further into the alleged conflict. Absent any constitutional violation, the trial court did not abuse its discretion by denying the defendant’s request for substitute counsel.
Trial court erred by revoking probation when evidence was insufficient to show that the defendant committed a new offense, communicating threats as prohibited by G.S. 14-277.1.
State v. Creed, No. COA25-184 (N.C. Ct. App. Sept. 17, 2025) (Surry County). On January 10, 2024, the defendant pled guilty to possession of a firearm by a felon and misdemeanor possession of marijuana. He was sentenced to a minimum 12, maximum 24 months; that sentence was suspended, and the defendant was placed on supervised probation for 36 months.
On June 30, 2024, the defendant met with Justin Potts. He made statements to Potts indicating he had a lot of animosity toward Judge Puckett, a superior court judge, and Detective Johnson of the Surry County Sheriff’s Office. According to Detective Johnson, Potts told Detective Johnson that the defendant had threatened to kill Detective Johnson and Judge Puckett. Detective Johnson reported the matter to the district attorney’s office.
In March and July of 2024, the defendant’s probation officer filed violation reports alleging, among other things, that the defendant had committed new criminal offenses by making credible threats against Judge Puckett and Detective Johnson. The violation reports came on for a hearing in August 2024. The trial court ultimately found that the defendant violated his probation as alleged, revoked his probation, and activated his suspended sentence. The defendant appealed.
On appeal, the defendant argued the trial court erred by revoking his probation because the evidence was insufficient to show he communicated a threat as prohibited by G.S. 14-277.1.
The Court of Appeals recognized that G.S. 14-277.1 (communicating threats) incorporates the First Amendment requirement of a “true threat,” that is, an objectively threatening statement communicated by a party who possessed the subjective intent to threaten a listener or identifiable group. Here, the Court of Appeals said, the evidence at the revocation hearing was insufficient to show the subjective and objective components of a true threat. Considering only Potts’s testimony, the Court of Appeals noted that Potts testified that the defendant did not say he was going to kill either Judge Puckett or Detective Brandon. The Court of Appeals concluded the evidence was not sufficient to satisfy a judge, in the exercise of his sound discretion, that the defendant’s statement constituted a true threat outside of the protection of the First Amendment. It reversed the judgment.
Trial court did not err by accepting allegedly inconsistent verdicts; trial court did not err by admitting an officer’s testimony about DNA evidence; trial court did not err by imposing restitution; and Court of Appeals lacked jurisdiction to review judgment for attorney’s fees.
State v. Jett, No. COA23-624 (N.C. Ct. App. Sept. 17, 2025) (Chowan County). On June 28, 2017, the defendant broke into a home and stole two shotguns. When the homeowner returned, he found his home in disarray. In his Florida room, the homeowner found a cigarette butt that did not belong to him; the defendant’s DNA was found on the cigarette butt. A neighbor reported to police having seen a person matching the defendant’s description standing at the back door of the victim’s home.
The defendant was indicted for possession of a firearm by a felon, felony breaking or entering, felony larceny, felony possession of stolen goods, and habitual felon status. The matter came on for trial in January 2023. The defendant was convicted of possession of a firearm by a felon, felony breaking or entering, and habitual felon status but acquitted of felony larceny / possession of stolen goods. Judgment was entered, and the defendant appealed.
On appeal, the defendant argued the trial court erred by (1) accepting inconsistent verdicts on the charges of possession of a firearm by a felon and felony larceny / possession of stolen goods, (2) admitting an officer’s testimony about DNA evidence, (3) imposing restitution of $1,118 absent sufficient evidence, and (4) ordering attorney’s fees without notice and an opportunity to be heard.
Addressing the first issue, the Court of Appeals found that the defendant failed to preserve the issue at trial, held plain error review was not available, and declined to invoke Appellate Rule 2. Distinguishing verdicts that are merely inconsistent from those that are mutually exclusive, it also concluded that the verdicts here – guilty of possession of a firearm by a felon and not guilty of felony larceny / possession of stolen goods – were merely inconsistent, not mutually exclusive.
Addressing the second issue, the Court of Appeals found the defendant “at least partially invited the error.” It noted that the defendant elicited from Chief Deputy John McArthur testimony that the defendant’s DNA was found on the cigarette butt recovered from the victim’s home. The Court of Appeals said the defendant also mischaracterized Deputy McArthur’s testimony, which it said was not offered to establish a DNA match, but to describe his investigative process. Finally, the Court of Appeals held that, even if the trial court erred by admitting the evidence, the defendant could not show prejudice because substantially similar evidence was admitted elsewhere.
Addressing the third issue, the Court of Appeals posited that an order of restitution must be supported by sufficient evidence. Here, the Court of Appeals found specific evidence supporting the restitution award, including receipts for replacement of the victim’s door and the victim’s testimony concerning the cost of installing a new door.
As to the fourth issue, the Court of Appeals said that judgments for attorneys’ fees are civil judgments, which are entered when reduced to writing, signed by the judge, and filed with the clerk, and which may be appealed pursuant to Appellate Rule 3(a). Here, the Court of Appeals found that the trial court never entered a final judgment for attorneys’ fees, and the defendant never filed written notice of appeal from any such order. The Court of Appeals concluded it lacked jurisdiction to review “a non-existent civil judgment for attorney’s fees.”
Trial court prejudicially erred when it failed to address the statutory circumstances of G.S. 14-51.2(c) that can rebut the presumption of reasonable fear created by G.S. 14-51.2(b) and failed to limit the instruction on excessive force to self-defense and defense of another.
State v. Thomas, No. COA24-770 (N.C. Ct. App. Sept. 17, 2025) (Surry County). In April 2020, the defendant’s home in Mount Airy was accessible only by way of a dirt driveway easement on the property of his neighbor, Burt Wallace. On the evening of April 9, 2020, the defendant was driving up and down the easement on a four-wheeler, when Wallace came out of his garage and began videotaping him. Wallace’s wife Danielle started a physical confrontation with the defendant’s wife and stepmother, injuring his stepmother’s wrist. The defendant saw Wallace coming up the driveway at him, thought Wallace was reaching for a gun, and shot Wallace twice.
On May 18, 2020, the defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury (ADWIKISI). The matter came on for trial in February 2024. The jury was instructed on self-defense, defense of another, and defense of habitation. The defendant was convicted of ADWIKISI. Judgement was entered and the defendant appealed.
On appeal, the defendant argued the trial court plainly erred (1) by denying him immunity under G.S. 14-51.2(c) and (2) in its jury instruction on self-defense under G.S. 14-51.3. The defendant also argued (3) he received ineffective assistance when counsel stipulated to the admission of a recorded interview, and (4) cumulative error deprived him of a fair trial.
The Court of Appeals found the second issue dispositive. Although the trial court delivered the instructions which the defendant requested, the Court of Appeals declined to apply the doctrine of invited error because counsel and the trial court did not, at the time of trial, have the benefit of State v. Phillips, 386 N.C. 513 (2024). Instead, the Court of Appeals reviewed for plain error.
Under Phillips, excessive force in defense of habitation is a legal impossibility. Here, the jury was instructed on excessive force twice: once in relation to self-defense and once to defense of another. N.C.P.I. – Crim. 308.45 (self-defense) & 308.50 (defense of another). The Court of Appeals concluded that the instructions were misleading, as the instructions did not clarify that the restriction on excessive force would not apply to defense of habitation. It noted that the prosecutor argued in closing that a defendant is never entitled to use excessive force. The Court of Appeals also said the instructions “conflated the requirements for common law defense of self or defense of a family member . . . and the statutory defense of habitation.” It rejected the State’s argument that the instruction was not erroneous because it complied with the Pattern Jury Instruction for Defense of Habitation or, alternatively, that the instruction should not have been given in any event.
Under Phillips, the presumption of reasonable fear created by G.S. 14-51.2(b) may be rebutted only by the circumstances listed at G.S. 14-51.2(c). Here, the jury was instructed that, absent evidence to the contrary, the lawful occupant of a home using deadly force is presumed to have held a reasonable fear of imminent death or great bodily harm if the victim was unlawfully and forcefully entering the premises and the defendant knew it. N.C.P.I. Crim. – 308.80. The Court of Appeals said the jury could have believed that the phase “absent evidence to the contrary” could refer to excessive force, which was “not a proper consideration under the defense of habitation.” Given the misleading instruction and the prosecutor’s argument, the Court of Appeals found “no practical difference” between the erroneous instructions in Phillips and those in this case.
In sum, the Court of Appeals held the trial court erred by (1) failing to address the statutory circumstances of G.S. 14-51.2(c) that may rebut the presumption created by G.S. 14-51.2(b) and (2) by failing to limit the instruction on excessive force to self-defense and defense of another. Further, given the conflicting evidence on whether Wallace had forcefully entered the defendant’s property, the Court of Appeals concluded that the error had a probable effect on the outcome. The Court of Appeals vacated the defendant’s conviction and remanded for a new trial.
Trial court did not err by denying the defendant’s motion to dismiss drug trafficking charges; trial court did not err by including “any mixture” language in jury instructions on drug trafficking; trial court did not err by imposing consecutive sentences for drug trafficking; and verdict and judgment forms were not fatally defective for failing to name fentanyl.
State v. Thomas, No. COA24-940 (N.C. Ct. App. Sept. 17, 2025) (Gaston County). On January 10, 2023, the defendant was speeding down Interstate 85. Troopers with the highway patrol attempted to conduct a traffic stop, and the defendant led the troopers on a high-speed chase. After running over a tire deflation device, he began throwing bags of white powder from his car. Troopers eventually stopped the defendant’s car and arrested him. Officers recovered one of the bags thrown from the car. Inside the defendant’s car, officers found two sandwich bags containing a white powdery substance. And in the ditch next to the defendant’s car, officers found a cooler containing smaller baggies of white powder and a digital scale.
The defendant was indicted for numerous felonies. The matter came on for trial on April 8, 2024. At trial, a forensic analyst testified that the sandwich bag from the defendant’s car contained a mixture of methamphetamine, fentanyl, and ANPP – a fentanyl precursor. The defendant was convicted by a jury of trafficking opium by possession of twenty-eight grams or more, trafficking opium by transportation of twenty-eight grams or more, trafficking methamphetamine by possession of between twenty-eight and 200 grams, trafficking methamphetamine by transportation of between twenty-eight and 200 grams, felony fleeing to elude arrest, driving while license revoked, speeding, and reckless driving. The defendant appealed.
Before the Court of Appeals, the defendant argued the trial court erred (1) by denying his motion to dismiss the trafficking charges, (2) by including the phrase “any mixture” in its jury instructions on drug trafficking, and (3) by imposing consecutive sentences for both trafficking offenses. He also argued (4) the verdict and judgment forms were fatally defective because they failed to identify fentanyl as the opium/opiate contained in the mixture seized from the defendant.
Addressing the first issue, the Court of Appeals observed that G.S. 90-95(h) provides that criminal liability for drug trafficking is based on the total weight of the mixture. Here, the substance seized from the defendant’s car was a mixture of methamphetamine and fentanyl. The Court of Appeals concluded there was sufficient evidence to show the threshold weight of both methamphetamine and opium/opiates, though the total weight of the mixture was 36.37 grams.
Addressing the second issue, the Court of Appeals rejected the defendant’s challenge to the jury instructions as “essentially an attempt to take another bite of the apple above.” Here, the “any mixture” language in the instructions on trafficking was consistent with law. The Court of Appeals concluded the trial court did not err in its instructions on drug trafficking.
Addressing the third issue, the Court of Appeals posited that offenses are not the same for double jeopardy purposes if each requires proof of an additional fact that the other does not. Here, the offenses of trafficking in methamphetamine and trafficking in opium each require proof of an additional fact that the other does not, namely the particular substance. Trafficking does not require twenty-eight grams of pure methamphetamine or fentanyl but a mixture containing such substance. The Court of Appeals concluded the trial court did not err by imposing consecutive sentences.
As to the fourth issue, the Court of Appeals acknowledged that a verdict may be interpreted by reference to the allegations, the evidence, and the instructions. Here, though the verdict form referred to opium/opiates rather than fentanyl, the indictments named fentanyl; the forensic analyst who testified identified fentanyl; and the jury was instructed that fentanyl is opium. The Court of Appeals concluded from this that the verdict and judgment forms were not fatally defective.