This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on March 4, 2026.
Evidence was sufficient on trafficking in opioids by possession; no error in failing to instruct on “ultimate user” exemption.
State v. Banks, COA25-432 (N.C. Ct. App. Mar. 4, 2026) (Yancey County) (Collins). The defendant was convicted at trial of trafficking in opioids by possession and related drug offenses. The evidence showed that the defendant had leftover Percocet pills in his kitchen after his wife passed away two years before. The pills were found in eight pill bottles bearing the defendant’s wife’s name on the prescription label. The defendant had offered money or pills to two individuals in exchange for sexual favors on multiple occasions, and he admitted to distributing pills to various people (other than his wife) for their headaches.
On appeal, the defendant argued that the trial court plainly erred by failing to instruct the jury on the “ultimate user” exemption. This exemption, codified in G.S. 90-101(c)(3), provides that an individual who lawfully possesses a controlled substance for his own use or for the use of a member of his household is not subject to prosecution. The Court of Appeals rejected this argument, noting that the pills were not prescribed to the defendant and the defendant admitted to providing the pills to others and attempting to trade the pills for sexual favors. The Court also rejected the defendant’s argument that the evidence was insufficient for similar reasons, stressing that the defendant had the burden of proving any exemption pursuant to G.S. 90-113.1(a).
No error in denying defendant’s motion to dismiss where state presented evidence that the victim did not unlawfully and forcibly enter upon defendant’s property; though trial court erred in instructing jury on exclusive factors upon which the presumption of reasonable fear could be rebutted, the error did not amount to plain error; though state appeared to conflate castle doctrine with self-defense during closing argument, the error did not constitute reversible error.
State v. Barbour, COA24-664 (N.C. Ct. App. Mar. 4, 2026) (Stokes County) (Gore). The defendant was convicted of voluntary manslaughter after a jury trial. The evidence showed that the defendant lived in a small Hare Krishna community next to the decedent’s house. Members of the community would regularly visit the decedent next door to socialize, and the defendant and decedent were lifelong friends. Community members took shortcuts across the various properties and assisted each other with household projects, and the decedent also participated in this arrangement.
A dispute arose between the defendant and the decedent over a lawn mower that the decedent was attached to. The decedent had been mowing the defendant’s lawn when the lawn mower got stuck in a ditch on the defendant’s property. The decedent left the lawn mower in the ditch, and the next day the defendant called the Sheriff’s Department to have the lawn mower removed, not realizing the lawn mower belonged to the decedent. When the decedent walked onto the defendant’s property with a tow strap to retrieve the lawn mower, the two had some sort of communication captured by video camera. The decedent gestured toward the woods and the defendant shook his head. At some point, the decedent walked into the woods and the defendant went into his house and got a shotgun. After some additional communication in the form of gestures, head-shaking, and words not captured by the video camera, the defendant shot the decedent in the head as the decedent crossed the driveway. The defendant stated that he had warned the decedent to get off the property and threatened to shoot him in the face if he did not leave. The defendant stated that the decedent had refused to leave and came aggressively toward him.
On appeal, the defendant argued that the trial court erred by denying his motion to dismiss because the state failed to overcome the castle doctrine defense. However, the Court of Appeals found that the state presented evidence that the defendant did not meet the initial threshold to qualify for castle doctrine protection. Under G.S. 14-51.2(b), the jury had to determine whether the decedent unlawfully and forcibly entered the home before the presumption that the defendant held a reasonable fear of imminent death or serious bodily harm applied. The Court of Appeals emphasized that multiple factors weighed against a determination that the entry onto the defendant’s property was unlawful and forcible: the neighbors regularly came onto each other’s property, the defendant and the decedent had a long and friendly relationship, the decedent was searching for his lawn mower and casually walking rather than “bearing down on defendant,” and the decedent was not even looking in the defendant’s direction when the defendant shot him. In the light most favorable to the state, the Court of Appeals determined that the defendant was not entitled to the presumption.
Second, the defendant contended that the trial court plainly erred by instructing the jury that the presumption in G.S. 14-51.2(b) could be rebutted in ways other than those specifically enumerated in G.S. 14-51.2(c). The Court of Appeals agreed that under the recent cases of State v. Thomas, 921 S.E.2d 847, 862 (N.C. Ct. App. 2025), and State v. Phillips, 386 N.C. 513, 516 (2024), the trial court erred by failing to explain that the statutory factors were the exclusive ways for the presumption to be rebutted. However, the court concluded that the error did not rise to the level of plain error because the defendant could not demonstrate that the jury’s verdict would probably have been different but for the error. This was because, in contrast to Thomas, the jury would not likely have been convinced that the defendant qualified for the presumption in the first place for the reasons discussed above.
Finally, the defendant challenged portions of the state’s closing argument referring to excessive force and whether the state could prove the defendant had no reason to be afraid. The court noted that the state’s closing argument did “appear to conflate” the law of self-defense with the castle doctrine. However, the court reasoned that the state could have been “jumping back and forth” between the two and that both areas were fair game for the jury. The court concluded that any impropriety in the closing argument did not rise to the level of gross impropriety.
Evidence was insufficient to establish that the defendant kept or maintained a hotel room for use of controlled substances where he had stayed in hotel room for “a while.”
State v. Hollis, COA25-239 (N.C. Ct. App. Mar. 4, 2026) (Rutherford County) (Tyson). The defendant was convicted at trial of trafficking in opium or heroin and misdemeanor keeping or maintaining a dwelling for controlled substances. The evidence showed that the defendant wanted to meet a woman without his girlfriend knowing. He made arrangements to use a hotel room a family member was renting. The defendant, the woman, and the family member all partied in the room. The defendant left the room and returned the following day to retrieve a shoebox. As the room had been booked in the family member’s name and the defendant did not have the key, the defendant had to get assistance in entering the room from a housekeeper.
Officers subsequently stopped the defendant as he drove away from the hotel. The officers brought the defendant back to the hotel and executed a search warrant of the room, where they found a wallet on the nightstand containing the defendant’s identification and $481.00 in cash. They also found a container with fentanyl pills and a digital scale. The defendant told officers he had been staying in the room “for a while” and made a statement about obtaining the pills.
On appeal, the defendant challenged only the conviction for misdemeanor keeping or maintaining a dwelling, contending the evidence was insufficient. The Court of Appeals stated that the question of whether the defendant “kept or maintained” a place within the meaning of the statute was a totality-of-the-circumstances analysis depending on several factors, including occupancy of the property, payment of rent, possession over a duration of time, possession of a key, and payment of utility expenses, as well as other factors related to drug activity such as large amounts of cash on premises, admission to selling, and the existence of drug paraphernalia. The court proceeded to compare the facts in the case at hand to prior cases addressing drug activity at hotel rooms and other locations. The court also focused on the definition of “keep” under the statute, explaining that the word indicates possessing something for at least a short period of time or intending to retain possession for a certain use. In light of the defendant’s lack of a key, the family member’s name on the room, the observation of the defendant leaving the room on only one occasion, and the inconclusive nature of the defendant’s statement that he had stayed in the room for “a while,” the Court of Appeals concluded that the trial court erred in denying the motion to dismiss the keeping or maintaining charge.
No plain error nor ineffective assistance of counsel with regard to admission of trooper’s lay testimony as to defendant’s intent; no error in trial court’s declining to intervene during state’s closing argument; no plain error in deviation from pattern jury instruction on evidentiary weight. However, habitual-felon indictment was defective because the prior felonies overlapped, and restitution order was not supported by sufficient reliable evidence.
State v. Hunt, COA23-890-2 (N.C. Ct. App. Mar. 4, 2026) (Robeson County) (Murry). This case involved convictions after trial for assault with a deadly weapon inflicting serious injury and injury to personal property. The matter was reviewed previously in State v. Hunt, 296 N.C. App. 245 (2024), in which a divided Court of Appeals found that the trial court plainly erred by admitting a trooper’s lay testimony that the defendant’s act of running over the victim was intentional (the defendant was driving a truck and the victim was driving an ATV). However, the North Carolina Supreme Court vacated the Court of Appeal’s decision and remanded for reconsideration in light of State v. Reber, 386 N.C. 153 (2024). Reber clarified the “exacting standard” a defendant must satisfy to show plain error.
In this second Hunt opinion by the Court of Appeals, the court concluded that the defendant had not met the threshold to establish plain error. The trooper testified at trial that he believed the defendant’s act was intentional based on the markings on the roadway, what the defendant said at the scene and afterwards, a review of video, and the placement of the ATV. The court applied the three-part test set out in Reber in analyzing the alleged error in admitting testimony the defendant did not object to at trial. First, the court concluded that any error was not fundamental because the trooper was allowed to testify as a lay witness to matters “rationally based on [his] perception” where such testimony would be helpful to the fact finder. Second, the court found that the defendant failed to show a probable impact on the verdict given other evidence showing the defendant’s intent to collide with the ATV. This evidence included a witness’s testimony that the defendant revved the engine and swerved toward the ATV, photographs showing a lack of brake-marks, and additional evidence outlined in the prior opinion pertaining to ongoing animosity between the defendant and the victim. Finally, the court stated that the defendant did not advance an argument as to how the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus the defendant did not satisfy the third Reber prong. The court thus concluded that any error in admitting the trooper’s testimony did not amount to plain error.
The court rejected the defendant’s argument as to ineffective assistance of counsel for similar reasons, finding the defendant could not demonstrate a “reasonable probability” of a different outcome had trial counsel objected to the testimony.
As a third issue, the defendant challenged a portion of the State’s closing argument asserting that the defendant got back in his truck after striking the victim and backed over the victim’s legs. The court found that the State did in fact misstate or overstate the evidence in this regard and cautioned the state to avoid such conduct. However, the court found that the statements were not so grossly improper as to warrant a new trial where the defendant did not object at trial.
Fourth, the defendant asserted that the trial court erred by deviating from the agreed-upon pattern instruction on evidentiary weight. The intended instruction read “if you decide that certain evidence is believable,” but the court stated to the jury that they “must decide that evidence is believable.” However, the Court of Appeals found no prejudicial error where the trial court quickly corrected the language and the instructions as a whole did not mislead the jury.
Fifth, the Court of Appeals agreed with the defendant that the habitual-felon indictment was fatally defective. The three predicate felonies in a habitual-felon indictment must be sequential and non-overlapping, meaning that each subsequent felony must be committed after the defendant is convicted of the preceding felony. In the present case, all three priors overlapped with one another. The court thus vacated the habitual-felon indictment and remanded for resentencing.
Sixth and finally, the Court of Appeals found that the trial court erred in awarding a restitution award of $592,000.00 where the evidence supporting the order lacked the requisite level of specificity and reliability. Though the victim testified as to what he believed to be the total of his medical bills, no documentation was offered up. The Court of Appeals explained that the quantum of evidence necessary is not high, but it must be competent, specific, and reliable, and in the present case the evidence did not meet the threshold.
The case was remanded for a new hearing on the proper amount of restitution and for resentencing without the habitual-felon enhancement.
No Harbison error where defense counsel merely reminded jury of option to convict on lesser included offense; defense counsel was not ineffective for failing to file a motion to suppress where search warrant was supported by probable cause; state’s closing argument was not grossly improper.
State v. Mercer, COA25-646 (N.C. Ct. App. Mar. 4, 2026) (Wilson County) (Murry). The defendant was convicted of assault inflicting serious bodily injury and false imprisonment after a jury trial. The defendant was in a “crazy rollercoaster” relationship with the victim, his girlfriend of four years. The evidence showed that the defendant demanded that the victim clean his room after she returned home from a sobriety meeting. The defendant became angry and threw her against a wall. He later pulled her off the bed while she was sleeping, causing her to fracture her right shoulder. He also stomped on her broken shoulder and her stomach, causing her to lose control of her bowels and defecate. She escaped to a gas station across the street.
During closing arguments, defense counsel contended that the state had failed to meet its burden as to first-degree kidnapping and stated that the jury had two choices: they could find him guilty of false imprisonment or return a verdict of not guilty. During the state’s closing argument, the state made comments that the victim had “told the truth.”
On appeal, the defendant argued that his counsel was ineffective because counsel conceded guilt to a lesser included offense without his client’s consent (under State v. Harbison, 315 N.C. 175 (1985)). However, the Court of Appeals disagreed, finding that defense counsel’s statement merely urged the jury to choose between finding guilt on a lesser included offense and returning a verdict of not guilty. The statement reminded the jury that they had the option of finding the defendant guilty of a lesser included offense. As the court concluded that defense counsel’s argument did not concede guilt, the court found no Harbison problem and thus no ineffective assistance of counsel.
The defendant also claimed that his counsel was ineffective in failing to move to suppress the fruits of a search warrant of the defendant’s residence. The search warrant had one officer’s name listed as applicant in the accompanying affidavit and another officer’s signature in the section for signature the applicant. However, the Court of Appeals explained that information relayed from one officer to another could supply the necessary probable cause for an affidavit supporting a search warrant. As the court determined that the affidavit established a nexus between the injury and the residence and the search warrant was supported by probable cause, the court concluded that counsel was not ineffective in failing to file a motion to suppress.
Finally, the court determined that the state’s comments during closing argument pertaining to the victim having “told the truth” were made in the larger context of arguing that her testimony was credible after the defendant gave conflicting testimony. Any impropriety did not rise to the level of gross impropriety and thus the trial court did not err by declining to intervene.
