This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on November 5, 2025. Special thanks to my colleague Brittany Bromell for her contributions to today’s post.
(1) Federal exploitation of a minor (18 U.S.C. 2252(a)(4)(A)) is substantially similar to state sexual exploitation of a minor (G.S.14-190.17A) requiring registration as a sex offender; (2) the State must show substantial similarity with an offense in effect at the time of the hearing; (3) the test for determining substantial similarity is not unconstitutionally vague.
State v. Alcantara, No. COA25-98 (N.C. Ct. App. Nov. 5, 2025) (Collins). In 2003, Enoc Alcantara pled guilty in federal court to possessing material depicting minors engaged in sexually explicit conduct. In 2021, the Guilford County Sheriff’s Office notified him of the requirement to register as a sex offender, prompting him to petition for judicial review (The Court of Appeals noted that Mr. Alcantara refers to himself and the courts have used the term defendant, and that this is not accurate, as he is a petitioner in a civil proceeding). The trial court initially ruled in favor of registration, but the Court of Appeals vacated that decision in 2023, finding the State failed to present the correct version of the federal statute. On remand, the State introduced the 2003 version of the federal statute and the 2023 version of the North Carolina statute criminalizing third-degree sexual exploitation of a minor (G.S. 14-190.17A). The trial court then concluded the statutes were substantially similar and ordered registration.
The petitioner argued the trial court’s order lacked required conclusions of law, relied on the wrong version of the state statute, and that the statutes were not substantially similar. He also challenged the constitutionality of the “substantial similarity” test. Addressing the petitioner’s first argument, the Court found the trial court’s order contained the required conclusions of law. The Court also found that the version of the North Carolina statute that the State must show has substantial similarity with the conviction offense is the version in effect at the time of the hearing on the petition, and that the 2023 version of G.S. 14-190.17A was the correct version for the trial court to consider. After finding the statutes criminalized substantially similar conduct, the Court found that the substantial similarity test provides a reasonable opportunity to know what is prohibited, and prescribes “boundaries sufficiently distinct for judges and juries to interpret and administer it fairly.” As a result, the Court found the substantial similarity test was not unconstitutionally vague.
(1) The First Amendment protected the silent display of a crude banner criticizing a county commissioner at a board meeting; (2) the defendant was entitled to resist an unlawful arrest where he used reasonable force.
State v. Barthel, No. COA25-159 (N.C. Ct. App. Nov. 5, 2025) (Stroud). In January of 2024, William Barthel attended an Avery County Board of Commissioners meeting. Shortly after the meeting began, Barthel stood against the back wall and, without blocking anyone’s view, held up a banner with vulgar language criticizing Commissioner Cindy Turbyfill. The banner contained a picture of the commissioner with the phrase “I’m no gynecologist but I know a c**t when I see one” (original uncensored). Law enforcement officers approached him and instructed him to put the banner down. He refused, arguing with law enforcement and pulling away from them. He was charged with disrupting an official meeting and resisting a public officer. He was convicted of both offenses after a jury trial and timely appealed.
The Court of Appeals held that the defendant’s silent protest was protected speech. Although offensive, the banner did not meet the legal standard for “fighting words,” which must be likely to provoke immediate violence. The Court emphasized that criticism of public officials is core political speech and receives heightened constitutional protection. The meeting was deemed a limited public forum, where content-based restrictions are allowed only if they are reasonable and viewpoint-neutral. The Court found that the defendant’s removal was based on the offensive nature of his message, not any actual disruption. The disruption occurred only after law enforcement intervened, and the banner itself did not block views or interrupt proceedings. Therefore, the Court found the defendant did not disrupt the meeting and was engaged in protected speech. Regarding the resisting a public officer charge, the Court reaffirmed that individuals have the right to resist unlawful arrests using reasonable force. The defendant’s resistance was mostly verbal and nonviolent. Because his arrest violated the First Amendment, his limited resistance to that arrest was justified and could not sustain a conviction for resisting a public officer.
(1) Challenge to jury instruction was not preserved where the defendant did not timely object; (2) plain error review waived where the defendant did not assert plain error in their principal brief.
State v. Cook, No. COA24-867 (N.C. Ct. App. Nov. 5, 2025) (Collins). Jeffrey Cook co-founded a furniture construction and selling business named Sugar Hill Custom Upholstery, LLC, where he managed finances. Despite the company’s growth, the defendant did not hire an accountant and concealed financial records. In 2016, co-owner David Self discovered unauthorized credit cards opened in Self’s name by the defendant, including one with a $25,000 delinquent balance. An accountant later uncovered approximately $206,000 in personal transactions and $2 million in unpaid payroll taxes, leading to indictments in Cleveland County Superior Court for embezzlement, corporate malfeasance, and identity theft. At trial, the State requested modifying the pattern jury instruction to specify that the embezzled funds belonged to Sugar Hill. The trial court initially agreed and stated they would “work on those” overnight. The court later emailed both parties a version of the instruction that did not include the State’s requested change. Neither the State nor the defendant objected when the instructions were emailed, during the jury charge, or after the jury charge. The defendant was convicted on all counts.
The defendant argued that the trial court erred by not including the State’s requested language in the jury instruction. However, the Court held that the defendant failed to preserve this issue for appellate review because he did not object before the jury retired. Additionally, the defendant’s failure to raise plain error in his principal brief constituted a waiver of plain error review.
(1) The trial court’s finding that the defendant took advantage of a position of trust or confidence was supported by the evidence; (2) the defendant’s ineffective assistance of counsel claim could not be assessed based on the record and was dismissed without prejudice.
State v. De Lossantos, No. COA24-1038 (N.C. Ct. App. Nov. 5, 2025) (Freeman). In 2020, Alexander De Lossantos was accused of killing his girlfriend, 17-year-old Alexia Carrilo-Vicencio. After an argument at her home, the defendant shot Alexia three times and fled the scene. He was later arrested in Mexico. After trial in Wake County Superior Court, the defendant was convicted of second-degree murder. During sentencing, he pleaded guilty to two aggravating factors: using a deadly weapon and taking advantage of a position of trust or confidence. The trial court did not consider the aggravating factor that the defendant used a deadly weapon as it determined the fact was “an element of the crime.” The trial court did find that the defendant took advantage of a position of trust or confidence, as well as two mitigating factors. Finding the aggravating factor outweighed the mitigating factors, the court imposed an aggravated sentence of 300 to 372 months.
On appeal, the defendant argued that the evidence did not support the aggravating factor of exploiting a position of trust. The Court disagreed, citing his familiarity with the home, his uninvited entry, Alexia’s lack of alarm upon seeing him, Alexia allowing the defendant to kiss her on the forehead, and Alexia’s departure and return to the room. Altogether, these factors permitted the trial court to find that the defendant exploited a position of trust. The defendant also claimed ineffective assistance of counsel for the advice to plead to aggravating factors without any sentencing benefit. However, the Court found the record insufficient to evaluate this claim and dismissed it without prejudice.
The trial court’s substitution of a juror after deliberations began, with an instruction to begin deliberations anew and disregard prior deliberations, did not violate the defendant’s right to a properly constituted jury of twelve.
State v. Glenn, No. COA23-1103 (N.C. Ct. App. Nov. 5, 2025) (Zachary). In this Forsyth County case, James Glenn was tried and convicted of multiple sex offenses involving a child, including statutory rape and taking indecent liberties. During deliberations, the jury requested, and was granted, review of State’s Exhibit 6, which had been admitted into evidence but not published to the jury (the alternate juror was not included in this review). Later, Juror #8 exhibited disruptive and threatening behavior, prompting concerns from fellow jurors about their safety. After conducting an inquiry with other jurors, and with agreement from both parties, the trial court excused Juror #8 and substituted the alternate juror. The court instructed the newly constituted jury to begin deliberations anew and disregard all prior deliberations. The jury returned convictions on all counts, and the defendant appealed, arguing that his constitutional right to a properly constituted jury of twelve was violated by the substitution of Juror #8 after deliberations had begun and that the alternate juror had not seen State’s Exhibit 6.
The Court first addressed the defendant’s argument that the substitution of Juror #8 violated his constitutional rights. Citing State v. Chambers, 387 N.C. 521 (2025), the Court found the procedures for substituting jurors in G.S. 15A-1215(a) were constitutional, and that the trial court properly followed those procedures. Further, because all jurors, including the alternate, heard testimony about State’s Exhibit 6 during trial, and the trial court instructed the newly constituted jury to begin deliberations anew after it had reviewed State’s Exhibit 6, the Court found the alternate juror’s absence during the review of State’s Exhibit 6 did not violate the defendant’s constitutional rights.
Search of the defendant’s premises conducted solely pursuant to a general administrative tax warrant violated the Fourth Amendment and required suppression of seized evidence.
State v. Hickman, No. COA24-893 (N.C. Ct. App. Nov. 5, 2025) (Flood). In 2022, the North Carolina Department of Revenue (DOR) issued a general administrative tax warrant against Johnnie Denise Hickman for unpaid taxes related to prior drug sales. Issued pursuant to G.S. 105-242, the tax warrant authorized the McDowell County Sheriff’s Office to “levy upon and sell the real and personal property of the said taxpayer.” DOR agents, accompanied by a sheriff’s deputy, entered Hickman’s residence pursuant to the tax warrant. They conducted a search, found methamphetamine and drug paraphernalia, and later obtained the defendant’s written consent to search after detaining her. The defendant moved to suppress the evidence, arguing the search violated her Fourth Amendment rights. The trial court denied the motion, finding the tax warrant gave agents inherent authority to search her residence.
The Court of Appeals disagreed, citing G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977) which held that searches for purposes of tax collection must be authorized by a search warrant if consent is not given. The court emphasized that while tax collection is a legitimate government interest, it does not override Fourth Amendment protections against unreasonable searches, and that the tax warrant does not confer the authority to search. It concluded that the search was unlawful and the evidence must be suppressed, reversing the trial court’s order and vacating the judgment.
Where a trial court’s decision to deny a defendant’s motion for individual voir dire is a reasoned decision, the defendant must show the trial court abused its discretion in denying the motion.
State v. Johnson, No. COA24-1126 (N.C. Ct. App. Nov. 5, 2025) (Collins). In this Anson County case, the defendant was tried on indictments alleging fourteen counts of sex-related crimes against a minor. Prior to trial, the defendant filed a written motion for individual or small group voir dire and orally moved for permission to give potential jurors a questionnaire at voir dire. The trial court denied both motions. The jury returned guilty verdicts on all charges. Following the trial, one the jurors came forward and disclosed that he voted “guilty” with the rest of the jury pool although he held a different opinion, asserting that “they ‘would have gotten mad at [him]’ if he has voted not guilty.” Slip op. at 3. Defense counsel timely filed a MAR on this issue, which the trial court denied. The defendant did not file a notice of appeal from the order denying the MAR. On appeal, the Court of Appeals found no error in the trial court’s judgments, dismissed the defendant’s purported appeal from the trial court’s order denying his MAR, and denied the defendant’s petition for writ of certiorari.
On appeal, the defendant first argued that the trial court violated his right to an impartial jury and abused its discretion by denying his request for individual or small group voir dire and a juror questionnaire. Citing relevant case law, the Court of Appeals noted that a trial judge has broad discretion to regulate jury voir dire, and for a defendant to show reversible error in the trial court’s regulation of jury selection, the defendant must show that the court abused its discretion and that he was prejudiced thereby. In reviewing the record, the Court found that the trial court’s decision to deny the defendant’s motion for individual voir dire was a reasoned decision and thus concluded that the defendant failed to show the trial court abused its discretion in denying the motion. Additionally, because the defendant failed to obtain a ruling on the motion for small group voir dire, the issue was not preserved for appellate review.
The defendant also argued that the trial court abused its discretion by not allowing a juror questionnaire. The Court of Appeals noted that it was apparent from the transcript that the trial court made a reasoned decision to the defendant’s request and concluded that the defendant failed to show that the court’s ruling was manifestly unsupported by reason. The defendant next argued that the trial court erred by denying his MAR. However, the defendant failed to file a notice of appeal from the order denying the MAR. Consequently, the Court of Appeals did not have jurisdiction to review the defendant’s challenge and dismissed that portion of the appeal. The defendant filed a petition for writ of certiorari asking the Court of Appeals to address the merits of his challenge to the denial of his MAR, but the Court concluded that the defendant failed to show merit or extraordinary circumstances to justify the issuing of a writ of certiorari.
(1) Where the trial court did not indicate that probation would begin after completion of an active sentence, the probation period ran concurrently with the defendant’s imprisonment; (2) a probation violation report that does not explicitly identify “absconding” may sufficiently allege facts that put the defendant on notice of an absconding violation and revocation; (3) willfully leaving a residential treatment facility and not contacting probation for nine days until being arrested constituted absconding.
State v. Stephens, No. COA24-590 (N.C. Ct. App. Nov. 5, 2025) (Stroud). In July of 2017, Jerry Stephens pled no contest to various crimes involving drug use, breaking and entering, and larceny after breaking and entering. The trial court sentenced the defendant to an active sentence in some of the cases and suspended the defendant’s sentence for 36 months of supervised probation in the others. When the defendant was on supervised probation after serving the active sentences, the State filed probation violation reports in Dare County, the first of which was dated 4 October 2021. The trial court found that the defendant willfully violated his probation and revoked his probation for absconding from supervision in ten cases. The defendant timely appealed.
The Court first held that the trial court lacked jurisdiction to revoke probation in nine of the ten cases because the probationary periods had expired before the revocation judgments were entered. In those nine cases, the trial court did not indicate that probation would begin after the defendant served his active sentence. As a result, the Court found that those probation periods ran concurrently with the defendant’s active sentence and expired in July of 2020, well before the first violation report in October of 2021. In the final case that the defendant appealed, the trial court did check the box that probation would begin after the defendant served his active sentence. The Court rejected the defendant’s argument in that case that he lacked notice of the absconding violation where the violation report did not explicitly identify “absconding” as grounds for violation. Because the defendant was on notice that absconding would be a violation of his probation, and the violation report included the actions the defendant took, the Court found the defendant was sufficiently on notice. The Court upheld the absconding finding where the defendant left a mandated residential treatment program in violation of his probation conditions and did not make his whereabouts known or contact his probation officer for nine days between his unauthorized departure and his arrest. Finally, the Court declined to review the defendant’s challenge to an anticipatory bond condition imposed in a separate, unappealed June 2023 order.
The Court of Appeals found no error where the jury was permitted to review evidence in the presence of seven non-jurors after deliberations had begun.
State v. Wilson, No. COA24-58 (N.C. Ct. App. Nov. 5, 2025) (Zachary). In this Nash county case, the defendant was on trial for four drug-related offenses and one charge of possession of a firearm by a felon. During jury deliberations, the jury asked to review a gun that had been admitted into evidence and published to the jury. The trial court dismissed counsel and the defendant from the courtroom while the jury reviewed the exhibit, and the trial judge left for a short period of time. The court reporter, some bailiffs, a probation officer, and the courtroom clerks remained present. The jury ultimately returned verdicts finding the defendant guilty of all charges. On appeal, the defendant challenged the constitutionality of the jury deliberations. The Court of Appeals concluded that the defendant received a fair trial, free from error.
The defendant’s sole argument on appeal was whether the trial court violated the North Carolina Constitution and committed reversible error when it instructed the jury to deliberate on the record with at least seven non-jurors present, including the judge. The Court of Appeals noted that although the trial court mistakenly referred to the review as part of the jury’s deliberations, the court complied with the applicable statutory directives for a jury’s review of evidence after it has begun deliberations. The defendant contended that reversible constitutional error occurred when the trial court permitted the jury’s review of the gun to occur in the presence of non-jurors. The Court of Appeals disagreed, concluding that the non-jurors did not participate in the deliberative process, nor was there any other violation of the sanctity of the jury deliberations.