Case Summaries: N.C. Court of Appeals (August 17, 2021)

This post summarizes published criminal decisions from the North Carolina Court of Appeals released on August 17, 2021. As always, these summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.

The trial court did not err in jury instructions for armed robbery by failing to designate the victims on the facts of this case

State v. McLymore, ___ N.C. App. ___, 2021-NCCOA-425 (Aug. 17, 2021).  In this armed robbery case, the trial court did not err by failing to designate in its jury instruction the two individuals named in the indictment as the alleged victims.  The defendant was indicted for armed robbery of two boys, Elijah and Shalik, who were specifically identified as victims in the indictment.  The jury heard evidence that on the evening of the crime the defendant obtained the shotgun he used when robbing Elijah and Shalik by taking it without authorization from a vehicle occupied by two men, Desean and Tevin, and that he had threatened them with the shotgun after taking it.  The jury also heard evidence that prior to taking the shotgun the defendant had attempted to rob a woman, Yvette, using a handgun.

The trial court instructed the jury using NCPJI CRIM 217.20, applicable to armed robberies involving a firearm, but, in a departure from the indictment, did not designate the victims Elijah and Shalik.  Because the evidence before the jury did not support a conviction for robbery with a firearm of Desean, Tevin, or Yvette, the court rejected the defendant’s argument that the trial court’s instruction left the jury free to convict him based on the uncharged offenses involving those people.  The court noted, however, that the better practice is to designate the victim in jury instructions for robbery with a firearm.


The defendant was not prejudiced by a detective’s testimony that the defendant’s photograph used in a lineup was retrieved from the “jail archive” and even if the testimony was prejudicial the trial court cured it by sustaining the defendant’s objection and instructing the jury to disregard the testimony

State v. McDougald, ___ N.C. App. ___, 2021-NCCOA-424 (Aug. 17, 2021).  In this armed robbery case, the trial court did not err by denying the defendant’s motion for a mistrial based upon a detective testifying that he had retrieved from the “jail archive” photographs used for a lineup where the victim identified the defendant.  The court noted that G.S. 15A-1061 mandates that a trial judge declare a mistrial on a defendant’s motion if there occurs during trial an error resulting in substantial and irreparable prejudice to the defendant’s case.  Otherwise, declaring a mistrial is in the trial court’s discretion.  The court explained that while the detective’s testimony arguably indicated to the jury indirectly that the defendant had a criminal history, the testimony was not prejudicial because the defendant himself directly informed the jury of his criminal history on direct and cross-examination.  The court went on to conclude that even if the testimony was prejudicial, the trial court cured any prejudice by sustaining the defendant’s objection and instructing the jury to disregard the detective’s statement.

The court dismissed without prejudice the defendant’s IAC claim based upon defense counsel’s failure to challenge the photographic lineup’s compliance with the Eyewitness Identification Reform Act because the record on direct appeal was insufficient to assess the claim.


An indictment for possession of a firearm by a felon was fatally defective where it charged that offense and other related offenses; The trial court erred by denying the defendant’s motion to suppress a pistol discovered during a search of his vehicle ostensibly based on probable cause of carrying a concealed weapon without making findings of fact sufficient to resolve a material conflict in the evidence related to the accessibility of the pistol

State v. Newborn, ___ N.C. App. ___, 2021-NCCOA-426 (Aug. 17, 2021).  In this case involving possession of a firearm by a felon and carrying a concealed weapon, (1) binding caselaw required that the defendant’s conviction for felon in possession be vacated because the indictment was fatally defective; and (2) the trial court’s ruling on the defendant’s motion to suppress was based on improper findings of fact.

(1) G.S. 14-415.1(c) dictates that an indictment charging a defendant with possession of a firearm by a felon must be separate from any indictment charging other offenses related to or giving rise to the felon in possession charge.  Here, a single indictment charged the defendant with felon in possession, possession of a firearm with an altered/removed serial number, and carrying a concealed weapon.  Finding itself bound by State v. Wilkins, 225 N.C. App. 492 (2013), the court determined that the State’s failure to obtain a separate indictment for the felon in possession offense rendered the indictment fatally defective and invalid as to that offense.

(2) The court determined that the trial court’s order denying the defendant’s Fourth Amendment motion to suppress a firearm seized from the center console of his vehicle did not contain adequate findings of fact pertaining to a material conflict in the evidence of the accessibility of the firearm and consequently the trial court plainly erred in denying the motion.

An officer initiated a valid traffic stop of the defendant and searched the vehicle for marijuana based on an emanating odor.  During the search, the officer felt and saw the handgrip of a pistol around the center console, arrested the defendant for carrying a concealed weapon, and then removed a plastic panel from the console to retrieve the pistol.  The defendant challenged the trial court’s finding of fact that “no tools were needed” to remove the panel, a finding bearing upon the accessibility of the pistol for purposes of determining whether the officer had probable cause for the independent search of the console premised on the offense of carrying a concealed weapon.  Reviewing the testimony, the court of appeals found that the finding that “no tools were needed” was not supported by the testimony at the suppression hearing and that the trial court otherwise failed to make necessary findings as to the accessibility of the pistol.  Because the accessibility issue was not resolved by adequate findings, the trial court’s conclusion of law regarding probable cause was not supported and it could not properly rule on the defendant’s motion to suppress.  The court remanded the case for the trial court to make further findings on the issue.


There was sufficient evidence of discharging a firearm into an occupied vehicle in operation where the defendant fired a bullet that struck a toolbox fastened into the truck’s bed

State v. Staton, ___ N.C. App. ___, 2021-NCCOA-427 (Aug. 17, 2021).  In this discharging a firearm into an occupied vehicle while in operation case, the trial court did not err by denying the defendant’s motion to dismiss for insufficient evidence.  Evidence at trial tended to show that the defendant fired a pistol at the victim’s truck and struck a toolbox fastened into the truck’s bed.  The court rejected the defendant’s argument that G.S. 14-34.1(b) requires at a minimum that the bullet strike the exterior wall of the vehicle.  Analogizing to State v. Miles, 223 N.C. App. 160 (2012), where it had determined that there was sufficient evidence of the version of the offense involving an occupied dwelling where a bullet struck a porch attached to a house, the court determined that striking the toolbox of the vehicle was sufficient to meet the firing “into [property]” element of the offense.