This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on June 3, 2026.
(1) The State lacks authority to appeal a district court’s verbal ruling on a motion to suppress in an implied consent case where no written preliminary determination is entered; (2) the superior court’s order based on such an appeal is void for lack of subject matter jurisdiction; (3) where a defendant pleads guilty in reliance on the ability to appeal that ruling, the plea must be rescinded.
State v. Dade, No. COA25-721 (N.C. Ct. App. June 3, 2026) (Arrowood). The defendant was charged with driving while impaired after an officer observed erratic driving, signs of intoxication, and later obtained a blood test showing a 0.12 BAC. In district court, the defendant moved to suppress, and the court verbally granted the motion after finding no probable cause to arrest. However, the court did not enter the written preliminary determination required by G.S. 20 38.6(f). The State filed notice of appeal to superior court, which conducted a de novo hearing, found probable cause, and remanded for denial of the suppression motion. The defendant later pled guilty pursuant to an agreement preserving his right to appeal the suppression ruling.
The Court of Appeals held that the superior court lacked subject matter jurisdiction to hear the State’s appeal. The Court emphasized that the State’s right to appeal in criminal cases is purely statutory and must be strictly construed. Under G.S. 20 38.6(f), a written preliminary determination is a prerequisite to the State’s appeal. Because the State appealed the verbal ruling alone, the appeal was improper and could not confer jurisdiction to superior court. As a result, the superior court’s de novo hearing and order were void, and the Court of Appeals vacated the order.
Turning to the subsequent proceedings, the Court concluded that the defendant’s guilty plea must be rescinded. The plea agreement expressly preserved the defendant’s right to appeal the denial of his suppression motion, but no such appeal right existed because no final order had been entered. The Court reasoned that the plea was entered in detrimental reliance on a material misunderstanding. Applying contract principles governing plea agreements, the Court rescinded the plea and remanded to the district court to enter a written order pursuant to G.S. 20-38.6.
(1) Where a defendant disputes or disclaims counsel’s admission of probation violations at a revocation hearing, the trial court must inquire further; (2) failure to conduct such an inquiry requires a new revocation hearing.
State v. Haney, No. COA25-943 (N.C. Ct. App. June 3, 2026) (Tyson). The defendant appealed from an order revoking his probation after pleading guilty to drug offenses and being placed on supervised probation. A violation report alleged multiple violations, including failure to report, leaving his residence without notice, and absconding. At the revocation hearing, defense counsel admitted all violations except the new criminal offense allegation, and the trial court revoked probation based in part on the admitted violations. However, immediately after the purported admission, the defendant told the court he had not agreed to admit the violations, had not consulted with counsel, and wanted new representation. The trial court did not inquire further and proceeded to revoke probation and activate the sentence.
The Court of Appeals held the trial court abused its discretion by revoking probation without ensuring that the defendant’s admissions were knowing and voluntary. The Court emphasized that a probationer’s waiver of the State’s burden of proof must occur through a valid in-court admission, and that due process requires the trial court to confirm the defendant’s consent to any such admission. Here, the defendant’s contemporaneous statements directly contradicted counsel’s admissions and raised concerns about lack of communication and authorization. The Court vacated the revocation judgment and remanded for a new probation revocation hearing. It declined to reach the defendant’s argument that he received per se ineffective assistance of counsel, noting the insufficient record due to the trial court’s failure to develop the issue.
(1) A defendant may challenge the trial court’s subject matter jurisdiction to extend probation for the first time on appeal; (2) the trial court erred extending probation beyond the five year statutory maximum, and such an error is substantive where extension would retroactively confer jurisdiction; (3) where a voided extension order results in the expiration of probation before violation reports are filed, the trial court lacks jurisdiction to revoke probation and must vacate the resulting judgments.
State v. Jessup, No. COA25-984 (N.C. Ct. App. June 3, 2026) (Hampson). In January 2021, the defendant pled guilty and received four consecutive suspended sentences with 36 months of supervised probation, including a substantial restitution obligation. In August 2023, the trial court extended his probation for an additional 36 months after he admitted nonpayment. The written extension orders indicated the extension was imposed “for good cause” under G.S. 15A 1344(d). In August 2024, violation reports alleged new offenses, failure to pay, and absconding. The trial court revoked probation in February 2025 and activated the sentences. On appeal, the State argued the defendant waived any challenge to the extension orders by failing to object below. The Court rejected that argument, emphasizing that subject matter jurisdiction may be raised at any time and cannot be conferred by waiver.
The Court of Appeals held the extension orders were void. The Court explained that under G.S. 15A 1344(d) and G.S. 15A 1342(a), a defendant’s total probationary term, including extensions, may not exceed five years. Here, the extension orders added 36 months to an existing 36-month term, resulting in a total term of six years, exceeding the statutory maximum. Because the orders expressly relied on G.S. 15A 1344(d), they exceeded the trial court’s statutory authority. The Court rejected the State’s argument that the orders contained a clerical error and should be treated as a permissible restitution-based extension under G.S. 15A 1342(a). The Court concluded that changing the statutory basis for the extension would constitute a substantive alteration because it would retroactively validate the extension and confer jurisdiction that otherwise did not exist.
Because the extension orders were void, the defendant’s original probation expired in January 2024. The violation reports were not filed until August 2024, after the expiration of the probationary term. Under G.S. 15A 1344(f), a court may revoke probation after expiration only if a violation report is filed beforehand. In the absence of a timely report, the trial court lacked jurisdiction to revoke probation. The Court vacated the judgments revoking probation and activating the defendant’s sentences.
(1) Repeated unanswered phone calls in violation of a DVPO can constitute felony stalking; (2) a defendant’s repeated attempts to communicate may satisfy the statutory definition of “communicates to or about a person”; (3) a trial court does not violate a defendant’s rights by meeting with jurors between the verdict and sentencing.
State v. Metcalf, No. COA25-624 (N.C. Ct. App. June 3, 2026) (Wood). The defendant was convicted of thirteen counts of violating a domestic violence protective order (DVPO) and one count of felony stalking. After previously threatening and shooting at the victim, the defendant sent numerous threatening messages, leading to entry of a DVPO prohibiting contact. While incarcerated, he placed thirteen calls to the victim over two days, including one answered by their shared child. The victim testified the calls caused fear and emotional distress. The trial court denied the defendant’s motion to dismiss the stalking charge and, after the jury returned guilty verdicts, briefly met with jurors during a recess before sentencing.
On appeal, the defendant argued the State failed to present sufficient evidence of a “course of conduct” because only one call was answered. The Court of Appeals disagreed, emphasizing that the stalking statute broadly defines a “course of conduct” to include “two or more acts” of communicating to or about a person by any means. The Court held that repeated unanswered phone calls constituted acts of communication because they conveyed a message that the defendant would continue contacting the victim despite the DVPO. Viewing the evidence in the light most favorable to the State, the Court concluded the repeated calls supported a reasonable inference of multiple acts forming a course of conduct that caused fear and emotional distress.
The defendant also argued the trial court violated his constitutional rights by meeting privately with jurors before sentencing. The Court rejected this argument, explaining that the jury had been discharged after returning its verdict, and sentencing did not require jury participation in this case. Because the jurors’ duties were complete, the defendant had no right to be present during the court’s interaction with jurors. The Court further held the issue was unpreserved due to the absence of any objection and declined to invoke Rule 2, finding no fundamental injustice or constitutional violation. The Court found no error in the proceedings and upheld the convictions.
(1) Evidence admitted for a limited non-substantive purpose cannot support a conviction, and such evidence is insufficient to establish actual possession of a firearm; (2) simultaneous possession of multiple weapons of mass destruction supports only one conviction under G.S. 14 288.8(a).
State v. Phelps, No. COA25-934 (N.C. Ct. App. June 3, 2026) (Collins). The defendant was convicted of two counts of possession of a firearm by a felon and two counts of possession of a weapon of mass destruction. One count of possession of a firearm by a felon was alleged to be actual possession of a ghost gun at a shooting, and the other count was alleged to be constructive possession of multiple firearms found at a later search of his home. The possession of weapons of mass destruction counts were based on a silencer and a grenade-like device from his home. During trial, the trial court admitted the evidence related to the shooting solely to explain the course of the investigation and instructed the jury it could not be considered for its truth. The defendant moved to dismiss the first possession of a firearm by a felon charge, arguing the evidence was insufficient to support actual possession of the ghost gun. The defendant also moved to dismiss one possession of a weapon of mass destruction charge, arguing that he could only be convicted and sentenced for one count based on the simultaneous possession of more than one weapon. The trial court denied both motions to dismiss.
On appeal, the Court first addressed the possession of a firearm by a felon conviction. The Court emphasized that all evidence of the shooting was admitted only for a limited, non-substantive purpose. Because such evidence cannot be used to prove an element of the offense, it could not establish that the defendant actually possessed the ghost gun at the scene. Viewing the remaining evidence in light of the limiting instruction, the Court concluded there was not substantial evidence of actual possession.
The Court next addressed the convictions for possession of a weapon of mass destruction. Noting this was an issue of first impression, the Court applied established principles governing the unit of prosecution. The Court explained that where a statute criminalizes possession of “any” contraband, and does not clearly define whether multiple items support multiple punishments, the statute is ambiguous. In such circumstances, the rule of lenity requires resolving the ambiguity in favor of the defendant. The Court held that G.S. 14 288.8(a)’s prohibition on possession of “any weapon of mass death and destruction” does not clearly authorize multiple convictions for simultaneous possession of multiple such weapons. Because the grenade and silencer were possessed together at the same time and place, the evidence supported only one conviction. The Court reversed the denial of the motion to dismiss one firearm-possession count and one weapon-of-mass-destruction count, vacated those convictions, and remanded for resentencing.
(1) Under G.S. 14 190.17(a)(2), second degree sexual exploitation of a minor is satisfied by the solicitation of material, and the State is not required to prove the requested material actually existed; (2) evidence that a defendant repeatedly requested sexually explicit videos from a minor is sufficient to establish solicitation and knowledge of the material’s character.
State v. Tyson, No. COA25-604 (N.C. Ct. App. June 3, 2026) (Wood). The defendant was convicted of multiple offenses arising from sexually explicit communications with a fourteen-year-old employee, including second-degree sexual exploitation of a minor. The evidence showed the defendant repeatedly requested sexually explicit videos from the minor through text messages and Snapchat, including requests that the minor record himself masturbating. The minor never sent such a video. The defendant moved to dismiss for insufficient evidence, which was denied.
The Court of Appeals rejected the defendant’s argument that the State was required to show the requested material existed. The Court focused on the language of G.S. 14-190.17(a)(2), which criminalizes the solicitation of material containing a visual depiction of a minor engaged in sexual activity. The Court emphasized that the statute expressly includes “solicits” as prohibited conduct, and nothing in the text requires the material to already exist. The Court distinguished cases interpreting other subsections of the statute, which involve activities like recording or producing images and may implicitly require that the material exists. The Court further held the State presented substantial evidence of solicitation. The minor testified that the defendant asked for explicit videos, and the State introduced messages in which the defendant repeatedly requested such content. From this evidence, a reasonable jury could infer that the defendant knowingly solicited material depicting a minor engaged in sexual activity and understood the nature of what he was requesting. The Court concluded the trial court properly denied the motion to dismiss and found no error in the defendant’s conviction.
(1) In aggravated death by distribution, the State need not prove that cocaine alone caused death where the evidence showed the cocaine worked in concert with other drugs; (2) the statute does not require the defendant to have distributed the controlled substance directly to each victim; (3) expert testimony based on certified toxicology reports does not violate confrontation principles where the testifying expert reviews and independently approves machine generated data; (4) a defendant waives appellate review of evidentiary error he invited by eliciting the challenged testimony.
State v. Wise, No. COA25-683 (N.C. Ct. App. June 3, 2026) (Collins). The defendant was convicted of multiple drug offenses, including two counts of aggravated death by distribution, after selling cocaine that contained fentanyl to a group of users, two of whom later died from multi-drug toxicity. The evidence showed the victims ingested cocaine from a batch supplied by the defendant and died shortly thereafter; post-mortem testing revealed the presence of cocaine, fentanyl, and alcohol. The trial court denied the defendant’s motion to dismiss the aggravated death charges, and the defendant also challenged the admission of expert toxicology testimony by two experts.
On appeal, the defendant argued the State failed to establish that cocaine was the proximate cause of the deaths. The Court rejected this argument, emphasizing that the aggravated death by distribution statute defines a “certain controlled substance” to include mixtures of substances such as cocaine and opioids. The Court held the State was not required to prove that cocaine alone caused the deaths where the evidence showed the drugs acted “in concert” to produce fatal multi-drug toxicity. Viewing the evidence in the light most favorable to the State, including testimony that the cocaine sold by the defendant contained fentanyl, the Court concluded there was sufficient evidence for a jury to find proximate cause. The defendant also argued the State failed to prove distribution to one of the victims. The Court rejected this argument, clarifying that the statute requires proof that the defendant unlawfully sold a qualifying controlled substance, not that it was sold directly to each victim. Evidence that the defendant supplied the cocaine consumed by the group, combined with testimony connecting the defendant to the transaction, was sufficient.
Turning to the evidentiary issues, the defendant argued that admission of the State’s toxicology expert testimony violated the Confrontation Clause because the underlying testing was performed by a non-testifying analyst. The Court disagreed, explaining that machine-generated toxicology data are not testimonial, and an expert may render an independent opinion based on such data if the expert reviews and certifies the results. Because the testifying expert reviewed, approved, and certified the toxicology reports and was subject to cross-examination, her testimony did not constitute impermissible surrogate testimony. The Court further held that the defendant waived any challenge to the admission of his own expert’s testimony under the invited error doctrine, as he elicited that testimony at trial. Finally, even assuming any error, the Court found no plain error in light of the substantial evidence of guilt, including eyewitness testimony, forensic evidence, and the defendant’s admissions. The Court found no error in the denial of the motion to dismiss, no plain error in the admission of the State’s expert testimony, and dismissed the remaining evidentiary challenge.
