This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on July 2, 2025.
Smell of marijuana justified a warrantless search of the juvenile’s vehicle.
In the Matter of: J.B.P., No. COA23-269 (N.C. Ct. App. July 2, 2025). On September 22, 2022, officers with the Beaufort County Sheriff’s Office were conducting surveillance on a suspected drug house. An officer smelled what he perceived to be marijuana while driving by a vehicle parked in front of the residence. The juvenile later drove away from the residence in that vehicle, and officers conducted a traffic stop. When an officer approached the car, he smelled the odor of marijuana emanating from the vehicle, and, when the juvenile stepped out of the car, the officer observed the odor of marijuana on the juvenile’s person. Officers searched the vehicle and seized marijuana, a digital scale, and a handgun.
The sheriff’s office filed petitions alleging the juvenile was delinquent because he was in possession of marijuana with intent to sell or distribute and a concealed handgun without a permit. In October 2022, the juvenile filed a motion to suppress, claiming that the search of his car violated his constitutional rights. Pursuant to a hearing, and based in part on a 2019 memo issued by the State Bureau of Investigation stating that marijuana is indistinguishable by sight or smell from legal hemp, the trial court granted the motion to suppress. It ruled that police did not have probable cause to believe the vehicle was carrying marijuana rather than legal hemp or any other controlled substance that would justify a warrantless search of the vehicle. The trial court suppressed the evidence and dismissed the charges. The State appealed.
The Court of Appeals framed the issues as whether the trial court erred by (1) granting the motion to suppress, and (2) dismissing the charges against the juvenile.
Addressing the first issue, the Court of Appeals cited its own precedent for the proposition that the smell of marijuana is sufficient to establish probable cause for a search. See State v. Reel, 910 S.E.2d 307 (N.C. Ct. App. Dec. 17, 2024). Here, as in Reel, the officers – based on their training and experience – smelled what they believed was marijuana emanating from the juvenile’s vehicle. Accordingly, the officers had probable cause to believe the vehicle contained marijuana. The Court of Appeals concluded that the trial court erred by granting the motion to suppress and dismissing the charges.
Evidence supported three separate counts of assault; trial court did not err by sentencing the defendant for each separate assault.
State v. French, No. COA24-704 (N.C. Ct. App. July 2, 2025). On October 4, 2022, the defendant and his wife, Christine Riley, were at home when defendant began drinking alcohol. At Riley’s request, the defendant went to a neighbor’s house. Riley was awakened around 11:30 p.m. by the defendant banging on the back door, requesting his phone. When Riley tried to hand over the phone, the defendant forced his way into the house and attacked Riley, striking her in the head, ribs, and stomach, and strangling her with his hands. Riley called 911, and officers with the Jacksonville Police Department and EMS responded.
The defendant was arrested and charged with assault by strangulation, assault on a female, and assault with a dangerous weapon inflicting serious injury. The matter came on for trial by jury in December 2023. The defendant was convicted of assault by strangulation, assault on a female, and the lesser included offense of assault inflicting serious injury, and the trial court imposed three consecutive sentences. Defendant appealed.
Upon review, the Court of Appeals framed the issues as whether the trial court erred by (1) denying the defendant’s motion to dismiss two of the three assault charges, and (2) sentencing the defendant separately and consecutively for the three assault convictions.
As to the first issue, the defendant argued that the assaults occurred during one continuous transaction, and the State failed to offer sufficient evidence of three separate assaults. The Court of Appeals cited State v. Dew, 379 N.C. 64 (2021), for the proposition that the State may charge a defendant with multiple assaults only when there is substantial evidence that a distinct interruption occurred between the assaults. Viewing the evidence in the light most favorable to the State, the Court of Appeals concluded that the State presented sufficient evidence of three separate assaults.
As to the second issue, the defendant argued that the trial court erred by imposing separate and consecutive sentences for the three assaults contrary to legislative intent. Each of the relevant statutes here begins with the clause, “unless the conduct is covered under some other provision of law providing greater punishment.” G.S. 14-31.4(b); 14-33(c)(1); 14-33(c)(2). The trial court may, however, sentence a defendant for multiple counts of assault when there is substantial evidence of a distinct interruption between assaults. State v. Harding, 258 N.C. App. 306, 316 (2018). Here, the State presented sufficient evidence of three separate assaults. The Court of Appeals concluded that the trial court did not err by imposing separate sentences for each of the three assaults.
Prosecutor erred by commenting on the defendant’s failure to testify, but the error was not so grossly improper as to entitle the defendant to a new trial.
State v. Gilbert, No. COA25-32 (N.C. Ct. App. July 2, 2025). On December 8, 2022, the defendant broke into a home in High Point and stole seven wristwatches. The next day, he pawned two of the stolen watches. On December 12, 2022, the defendant attempted to pawn additional wristwatches. The defendant was charged with felony breaking and entering, felony larceny, obtaining property by false pretenses, and habitual felon status.
The matter came on for trial by jury in March 2024. During closing arguments, the prosecutor told the jury, “Now, [the defendant] doesn’t have to testify, but there’s no other evidence to say otherwise as to how he got those watches honestly.” The defendant was convicted of the substantive charges and pled guilty to habitual felon status. The defendant appealed.
Before the Court of Appeals, the defendant argued the trial court erred by failing to intervene ex mero motu when the prosecutor referred to his failure to testify. The Court of Appeals posited that a prosecutor’s comment on the defendant’s failure to testify violates the defendant’s constitutional right to remain silent, but such a comment is not invariably prejudicial, citing State v. Ward, 354 N.C. 231 (2001), and State v. Reid, 334 N.C. 551 (1993). Here, the prosecutor’s reference to the defendant’s failure to testify was error. But given the overwhelming evidence of the defendant’s guilt, the error was not so grossly improper as to entitle him to a new trial.
Order of restitution supported by no record evidence was vacated, remanded for rehearing.
State v. Gray, No. COA24-898 (N.C. Ct. App. July 2, 2025). On August 19, 2022, the defendant, while working at Ojay’s Auto Detailing Service, stole a firearm from the trunk of a customer’s car. The defendant was charged with larceny of a firearm, safecracking, misdemeanor larceny, and possession of a firearm by a felon.
The matter came on for trial in October 2023. At trial, the victim described the stolen gun, but he did not testify as to its value. The defendant was convicted of larceny of a firearm and possession of a firearm by a felon. At sentencing, the prosecutor submitted a restitution worksheet in the amount of $1,000, based on a victim impact statement that was neither filed nor admitted at trial. In its judgments, the trial court ordered restitution of $1,000. The defendant appealed.
Before the Court of Appeals, the defendant argued the trial court erred by ordering restitution of $1,000. The Court of Appeals recognized that a restitution worksheet alone is insufficient to support an order of restitution, citing State v. Moore, 365 N.C. 283 (2011). Here, the only evidence of the gun’s value was the restitution worksheet. (In a long footnote, the Court of Appeals ruled that the victim impact statement was not eligible for addition to the record pursuant to Appellate Rule 9 because it was never submitted to the trial court for consideration.) The Court of Appeals vacated the restitution order and remained for rehearing on restitution.
Sufficient evidence of absconding; the trial court erred by failing to exercise its discretion in deciding whether absconding warranted revocation of probation.
State v. Johnson, No. COA24-1029 (N.C. Ct. App. July 2, 2025). The defendant pled guilty in July 2022 to obtaining property by false pretenses, and he was placed on supervised probation for 24 months. His probation was transferred to Virginia and then to West Virginia. The defendant later returned to Virginia but failed to notify his North Carolina probation officer of the move. In December 2023, his probation officer ordered the defendant to return to North Carolina, but the defendant refused. On 3 January 2024, the probation officer filed a violation report, alleging absconding, among other things.
The violation report came on for a hearing in May 2024. The trial court found that the defendant had absconded as alleged and – noting that the only alternative was to revoke probation – revoked the defendant’s probation and activated his suspended sentence. The defendant appealed.
Before the Court of Appeals, the defendant argued the trial court erred by revoking his probation. By statute, the trial court “may only revoke probation” upon a finding of, among other things, absconding. G.S. 15A-1344(a). The Court of Appeals posited that the trial court may revoke probation only if it finds, among other things, absconding, citing State v. Williams, 243 N.C. App. 198 (2015). It said the trial court has discretion to revoke probation if reasonably satisfied that the defendant has violated a condition of probation, citing State v. Terry, 149 N.C. App. 434 (2002).
The Court of Appeals first determined that the relevant time frame was October 27, 2023, to January 3, 2024, as alleged in the violation report. Noting the defendant moved back to Virginia without applying for transfer of probation, failed to notify his probation officer of his return to Virginia, and failed to return to North Carolina upon demand, it concluded the trial court did not err by finding the defendant absconded. Declaring the trial court “acted under a misapprehension of law” that it could only revoke probation upon a finding of absconding, however, the Court of Appeals vacated the order and remanded for the trial court to exercise its discretion in deciding whether to revoke probation.
Judge Griffin dissented in part, opining that the trial court’s comment – that the only alternative was to revoke probation – did not indicate any abuse of discretion.
Trial court erred by assigning one prior record level point based on the defendant’s being on probation, but the error was harmless; the trial court did not plainly err in admitting expert testimony identifying the suspected controlled substance as methamphetamine.
State v. Stidham, No. COA24-353 (N.C. Ct. App. July 2, 2025). On February 17, 2022, officers with the Shelby Police Department conducted a traffic stop on the defendant’s car. A search of the vehicle revealed methamphetamine in a blue coin purse. The defendant told an officer that she was on probation. The defendant was arrested and charged with possession of methamphetamine and possession of drug paraphernalia.
The matter came on for trial by jury in September 2022. At trial, Thomas Rockhold, a forensic scientist with the North Carolina State Crime Lab, testified without objection that he analyzed the suspected controlled substance and determined that it was methamphetamine. The defendant was convicted of possession of methamphetamine and possession of drug paraphernalia. At sentencing, the trial court found the defendant had stipulated to her prior convictions, and concluded she was a prior record level III offender for felony sentencing. The defendant appealed.
Before the Court of Appeals, the defendant argued the trial court erred by (1) adding one prior record level (PRL) point based on her being on probation, and (2) by admitting expert testimony at trial.
As for the first issue, one PRL point is assigned if the offense was committed while the offender was on probation. G.S. 15A-1340.14(b)(7). Absent waiver, however, the State must give notice of its intent to assign such a PRL point, and the trial court must determine whether the State provided, or the defendant waived, such notice. G.S. 15A-1022.1(a); 15A-1340.16(a6). Here, the Court of Appeals found no evidence the State provided such notice nor that the defendant waived notice. Further, the trial court failed to follow the procedure prescribed by G.S. 15A-1022.1. Finding the trial court erred by adding a PRL point under G.S. 15A-1340.14(b)(7), the Court of Appeals also found the defendant failed to show prejudice, given that the minimum sentence imposed was the highest possible minimum sentence in the presumptive range for both a PRL II and III offender. See G.S. 15A-1340.17.
As for the second issue, the Court of Appeals noted “conflicting opinions” as to whether the unchallenged admission of expert testimony could be reviewed for plain error, and it elected to review the issue here for plain error. Evidence Rule 702 provides a three-part test for qualification of a witness as an expert. G.S. 8C-1, Rule 702(a); State v. McGrady, 368 N.C. 880 (2016). Reviewing Rockhold’s testimony to determine whether (1) the testimony was the product of reliable principles and methods, and (2) the witness has applied the principles and methods reliably, the Court of Appeals concluded the trial court did not err by admitting the evidence.
Judge Freeman dissented in part, opining that plain error review is not available for discretionary determinations such as the admission of expert testimony under Evidence Rule 702.
(1) No error in refusing to instruct on voluntary intoxication; (2) sufficient evidence of two separate assaults by strangulation; (3) no error in failing to distinguish the injuries caused by the two assaults by strangulation; (4) no error in failing to intervene ex mero motu in the prosecutor’s closing argument, and (5) no abuse of discretion in imposing a fine of $25,000.
State v. Tadlock, No. COA24-459 (N.C. Ct. App. July 2, 2025). On March 18, 2022, the defendant began drinking, and his wife, designated K.S., went to bed. Around 1:30 a.m., the defendant came into the bedroom screaming at K.S. When she ignored him, the defendant returned with a gun and pointed it at K.S. The defendant forced K.S. to retrieve a necklace she had given to her daughter and compelled her to destroy it with a hammer. The defendant then choked K.S. until she lost consciousness. When she regained consciousness, K.S. laid down with the defendant in bed and they had sex. When the defendant fell asleep, K.S. left the home and went to the hospital.
The defendant was charged with attempted first-degree murder, first-degree kidnapping, first-degree forcible rape, assault with a deadly weapon with intent to kill or inflict serious injury, and two counts of assault by strangulation. The matter came on for trial by jury in October 2023. During the charge conference, the trial court denied the defendant’s request for an instruction on voluntary intoxication. During closing arguments, the prosecutor told the jury that alcoholics can still function, and that the evidence here showed that the defendant knew what he was doing. The defendant was convicted of first-degree kidnapping, first-degree forcible rape, assault with a deadly weapon inflicting serious injury, and two counts of assault by strangulation. The trial court’s judgments included a fine of $25,000. The defendant appealed.
The Court of Appeals framed the issues on appeal as whether the trial court erred by (1) declining to instruct on voluntary intoxication, (2) denying the defendant’s motion to dismiss one count of assault by strangulation, (3) failing to distinguish between the injuries caused by each assault by strangulation, (4) failing to intervene ex mero motu in the prosecutor’s closing argument, and (5) imposing a fine of $25,000.
Addressing the first issue, the Court of Appeals recognized a defendant may be entitled to an instruction on voluntary intoxication if he produces substantial evidence he was so intoxicated he could not form the requisite specific intent, citing State v. Mash, 323 N.C. 339 (1988). Here, the Court of Appeals noted there was no evidence the defendant had trouble speaking or walking; there was no evidence the defendant engaged in inexplicable behavior prior to attacking K.S.; and the evidence showed that the defendant apologized to K.S. after the attack. It concluded there was not substantial evidence the defendant was so intoxicated he could not form the intent required for kidnapping or rape, and the trial court did not err by declining to instruct on voluntary intoxication.
As for the second issue, the State may charge a defendant with multiple assaults only when there is substantial evidence that a distinct interruption occurred between the assaults, such as an intervening event, a lapse of time, an interruption in the momentum, a change in location, or some other break. State v. Dew, 379 N.C. 70 (2021). Here, the Court of Appeals said, there was sufficient evidence of a distinct interruption between one assault by strangulation and the next, evidenced by a change in location and different methods of attack. The trial court therefore did not err by denying the defendant’s motion to dismiss one count of assault by strangulation.
As for the third issue, a conviction of assault by strangulation requires a showing of physical injury. G.S. 14-32.4(b). The Court of Appeals analogized this case to State v. Bates, 179 N.C. App. 628 (2006), and distinguished State v. Bowman, 292 N.C. App. 290 (2024), rev’d 915 S.E.2d 134 (N.C. 2025). As in Bates, “the number of counts equals the number of incidents presented in evidence,” the trial court instructed the jury once for each count, and the trial court instructed the jury that it could not reach a verdict by majority vote. Unlike in Bowman, the verdict sheets differentiated each offense. The Court of Appeals concluded that the trial court did not err by failing to distinguish the physical injuries for the jury.
As for the fourth issue, during closing argument an attorney may not make arguments based on matters outside of the record. G.S. 15A-1230(a). Arguments that fail to provoke timely objection are reviewed for gross impropriety, an exceedingly high bar. State v. Reber, 386 N.C. 153 (2024); State v. Jones, 355 N.C. 117 (2002). Here, the prosecutor’s statements about alcoholics – that they can still function and they know right from wrong – were not so grossly improper that the trial court erred by failing to intervene ex mero motu. See State v. Cole, 343 N.C. 399 (1996).
As for the fifth issue, a person who has been convicted of a criminal offense may be ordered to pay a fine, and as to felony sentencing the amount of the fine is within the trial court’s discretion. G.S. 15A-1340.17(b); 15A-1361. Here, the Court of Appeals rejected the defendant’s argument that the trial court erred by failing to take his financial situation into consideration, explaining that G.S. 15A-1340.36 pertains to restitution, not fines. It also rejected the argument that the fine was unreasonable, explaining that G.S. 15A-1362(a) relates to the method of payment rather than its amount. The Court of Appeals concluded the defendant failed to show any abuse of discretion.
Judge Freeman dissented in part, opining that there was not sufficient evidence of a distinct interruption to support two separate convictions of assault by strangulation.
(1) No error in the denial of the defendant’s motion to sever her trial from her co-defendant’s trial for murder and child abuse of her one-year-old child; (2) no error in the admission of father’s statement that the defendant had cheated on him while pregnant; (3) no error in the admission of the father’s statement that he did not believe the defendant’s version of events.
State v. Upchurch, No. COA24-460 (N.C. Ct. App. July 2, 2025). In April 2016, the defendant gave birth to Darius Cotton’s son, De’Andre. On July 16, 2017, the defendant called Chatham County 911 for assistance. When EMS arrived, they found De’Andre lying on the floor, dead; he had no pulse and he was cold to the touch. The medical examiner determined, based on multiple injuries, that the cause of De’Andre’s death was blunt force trauma to the chest and abdomen.
The defendant and co-defendant, Ricky Adams, were charged with first-degree murder and intentional child abuse inflicting serious bodily injury. On October 28, 2019, the trial court granted the State’s motion to join the defendants for trial. On June 28, 2021, and several times thereafter, the defendant moved to sever her trial from Adams’s trial. The trial court denied the motion. The defendant was convicted by a jury of first-degree murder and intentional child abuse inflicting serious bodily injury. The defendant appealed.
Before the Court of Appeals, the defendant argued the trial court erred by (1) denying her motion to sever, (2) admitting character evidence that she cheated on Darius Cotton, and (3) admitting Cotton’s hearsay statement that he did not believe the defendant’s version of events.
As to the first issue, charges against two or more defendants may be joined for trial when each of the defendants is charged with accountability for each offense. G.S. 15A-926(b)(2)(a). The trial court must grant a severance of defendants when it is necessary to promote a fair determination of the guilt or innocence of one or more defendants. G.S. 15A-927(c)(2). The propriety of joinder is within the sound discretion of the trial judge. State v. Pickens, 335 N.C. 717 (1994).
Here, the Court of Appeals rejected the defendant’s argument that severance was required because: each defendant blamed the other for De’Andre’s death, each defendant elicited testimony that the other was impassive when EMS arrived, the trial court acted under a misapprehension that it could not revisit another judge’s prior denial of a severance, and the trial court erroneously precluded the defendant’s evidence based on concerns with protecting Adams’s rights. The Court of Appeals concluded that the trial court did not err by denying the defendant’s motion to sever.
As to the second issue, the Court of Appeals noted that during the defendant’s cross-examination of Cotton, she elicited his opinion that the defendant had been a good woman to him. On redirect examination, the prosecutor asked Cotton what caused him to end the relationship, to which Cotton responded, that the defendant told him she had slept with someone else. Rejecting the defendant’s challenge to the admissibility of this evidence, the Court of Appeals explained that the defendant opened the door by asking Cotton if the defendant had been a good woman to him. The trial court therefore did not err by admitting the evidence.
As to the third issue, the Court of Appeals noted that Cotton testified at trial that he had expressed concerns to police that the defendant’s account of De’Andre’s death was inconsistent. It noted that the video of Cotton’s interview with police was introduced to corroborate his testimony. Rejecting the defendant’s challenge to the admissibility of certain statements in the video, the Court of Appeals explained the evidence was not hearsay because it was offered for corroborative purposes. The trial court therefore did not err by admitting the evidence.
(1) Sufficient evidence of impaired driving, (2) no error in admission of expert opinion re retrograde extrapolation of the defendant’s BAC, (3) no error in trial court’s failure to give entire civil pattern jury instruction on intervening negligence, (4) the defendant failed to show ineffective assistance of counsel.
State v. Venable, No. COA24-707 (N.C. Ct. App. July 2, 2025). On August 2, 2021, defendant drove his red Kia Rio off Old Wake Forest Road in Raleigh and crashed into a tree, killing his wife, who was a passenger in the vehicle. Emerging from the vehicle, the defendant smelled of alcohol, his balance was poor, his speech was slurred, and he appeared disoriented. Police found five empty airplane bottles in the car. Two blood samples collected from the defendant revealed a blood alcohol content (BAC) of 0.0883 and 0.05 grams of alcohol per 100 milliliters of blood.
In November 2021, the defendant was charged with felony death by vehicle and driving while impaired. The matter came on for trial by jury in August 2023. At trial, a forensic chemist testified, based on a retrograde extrapolation analysis, that the defendant’s BAC at the time of the accident was 0.1078. During the charge conference, the defendant requested a civil pattern jury instruction on intervening negligence, a part of which the trial court agreed to give. The defendant was convicted of felony death by vehicle and driving while impaired. The defendant appealed.
Upon review, the Court of Appeals identified the issues as whether the trial court erred by (1) denying the defendant’s motion to dismiss, (2) admitting expert testimony of retrograde extrapolation, and (3) declining to give the entire civil pattern instruction on intervening negligence. The defendant also argued he received ineffective assistance of counsel.
As to the first issue, the defendant argued that Officer Daniel Egan’s opinion that he was appreciably impaired at the time of the crash was unsupported by evidence. To convict a defendant of impaired driving, the State must prove that the defendant drove a vehicle (1) while appreciably impaired or (2) after having consumed sufficient alcohol that he has an alcohol concentration of 0.08 or more at any relevant time after driving. G.S. 20-138.1(a). An officer’s opinion that a defendant is appreciably impaired is admissible when based on the officer’s personal observation or other evidence of impairment. State v. Gregory, 154 N.C. App. 718 (2002).
Here, the Court of Appeals said, Officer Egan observed other evidence of impairment, including the collision scene, the bottles in the car, and the defendant’s statements that he had been drinking. Therefore, sufficient evidence supported the opinion. Further, the Court of Appeals said, the evidence was not limited to Officer Egan’s opinion. Other evidence indicated the defendant’s balance was poor, his speech was slurred, he smelled of alcohol, and he appeared disoriented. In addition to this evidence of appreciable impairment, the State also presented evidence of the defendant’s BAC at the time of the crash. The Court of Appeals concluded there was sufficient evidence of impaired driving, and the trial court did not err by denying the motion to dismiss.
As to the second issue, the defendant argued the trial court plainly erred by admitting expert testimony of retrograde extrapolation because the witness, Dr. Richard Waggoner, made critical assumptions unsupported by the record. When an expert witness offers a retrograde extrapolation opinion based on an assumption that the defendant is in a post-absorptive or post-peak state, that assumption must be based on some underlying facts. State v. Babich, 252 N.C. App. 165 (2017). Here, the Court of Appeals said, Dr. Waggoner based his analysis of a blood draw at the hospital, the defendant’s statements, and the evidence found at the scene. The Court of Appeals concluded the trial court did not err by admitting Dr. Waggoner’s testimony, and in any event the defendant failed to show sufficient prejudice to establish plain error.
As to the third issue, the defendant argued the trial court plainly erred by failing to give the entire civil pattern jury instruction on intervening negligence. To convict a defendant of felony death by vehicle, the State must show, among other things, that the defendant’s impairment was the proximate cause of death. G.S. 20-141.4(a1); State v. Bailey, 184 N.C. App. 746 (2007). Here, the trial court properly instructed the jury on proximate cause. The Court of Appeals concluded that the intervening negligence instruction sufficiently incorporated the necessary principles, and in any event, the defendant failed to show sufficient prejudice to establish plain error.
Finally, the defendant argued he received ineffective assistance when counsel failed to object to the testimony of Officer Egan and Dr. Waggoner and to the incomplete jury instruction. The Court of Appeals concluded, however, that the defendant failed to show deficient performance.
Trial court prejudicially erred by admitting expert testimony vouching for the victim’s credibility; the indictment did not provide sufficient certainty as to the offense charged.
State v. Wingate, No. COA24-815 (N.C. Ct. App. July 2, 2025). In September 2017, the defendant forced his twelve-year-old son, James, to pull on his (the defendant’s) penis, asked James to pull his pants down, and inspected James’s penis. The defendant later forcibly penetrated James’s anus with his penis about 12 times. After James revealed the abuse to a therapist, the defendant was charged with four counts of indecent liberties and one count of first degree statutory sexual offense.
The matter came on for trial by jury in July 2023. At trial, James testified about the abuse. The State’s evidence also included the testimony of James’s mother’s therapist, Kennedy Gayno; a child abuse evaluation specialist, Leigh Howell; a pediatrician, Dr. Elizabeth Witman; and an expert in trauma therapy, Miriane Portes. The defendant was convicted of all charges and sentenced to a minimum 364, maximum 536 months. The defendant appealed.
On appeal, the defendant argued (1) the indictment failed to provide sufficient notice. He also argued that the trial court erred by (2) sentencing him as upon a conviction for statutory sexual offense with a child by an adult, (3) admitting expert testimony vouching for the victim’s credibility, and (4) denying his motion to dismiss the charge of first-degree statutory sexual offense. The defendant also argued he received ineffective assistance of counsel.
First addressing the third issue, the Court of Appeals posited that, absent physical evidence of abuse, an expert witness may not be permitted to testify that sexual abuse actually occurred. State v. Stancil, 355 N.C. 266 (2002). Here, Portes testified that she diagnosed James with PTSD and that James’s symptoms were consistent with the trauma he had reported. Dr. Witman testified that the lack of physical findings was consistent with James’s disclosure of sexual abuse. The Court of Appeals concluded that Portes’s and Witman’s testimony amounted to impermissible vouching. It further held that this error rose to the level of plain error, entitling the defendant to a new trial.
As for the indictment issue, the Court of Appeals posited that an indictment must provide sufficient notice to enable the accused to prepare for trial and the court to pronounce sentence. See State v. Reavis, 19 N.C. App. 497 (1973). First-degree statutory sexual offense under G.S. 14-27.29 is a lesser included offense of statutory sexual offense with a child by an adult. G.S. 14-27.28(d). Under State v. Singleton, 386 N.C. 183 (2024), however, the Court of Appeals said, “a defendant raising the issue of an insufficient indictment must show prejudice.”
Here, the defendant’s indictment alleged the elements of statutory sexual offense with a child by an adult, but it identified the offense by name and statutory citation as first-degree statutory sexual offense. At trial, the trial court instructed the jury on statutory sexual offense with a child by an adult, but the verdict sheet identified the offense as first-degree statutory sexual offense. The defendant was sentenced as upon a conviction of statutory sexual offense with a child by an adult, but the judgment identified the offense as first-degree statutory sexual offense.
The Court of Appeals ruled that the indictment did not provide such certainty to allow the defendant to prepare for trial and the court to pronounce sentence. It found that the defendant was prejudiced, as the difference in length of potential sentences is significant and may have influenced his decision to plead not guilty. The Court of Appeals notified the State and the trial court it would have vacated the conviction “if we were required to rule on the sufficiency of the indictment.”
Judge Dillon dissented, opining that the trial court did not plainly err by admitting the vouching testimony. But Judge Dillon believed that the jury convicted the defendant of first-degree statutory sexual offense, and he would have remanded for entry of judgment as upon that offense.