This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on August 5, 2026.
No Fourth Amendment violation where law enforcement seized bloody shirt from the defendant during previous incident involving potential violent crime and subsequently used blood from the shirt to conduct DNA-testing in case at bar.
State v. Howze, COA24-624 (N.C. Ct. App. Aug. 5, 2026) (Guilford County) (Stading). The defendant was convicted of first-degree murder at trial. On appeal, he challenged the denial of his motion to suppress. Law enforcement had seized a bloody shirt the defendant was wearing during a prior unrelated investigation. Officers conducted DNA-testing using blood from this shirt and the testing produced evidence linking defendant to the scene of the crime in the case at bar.
On appeal, the defendant contended that the seizure of the bloody shirt from his body while he was at a hospital and the subsequent DNA-testing were unlawful under the Fourth Amendment. First, he claimed that the shirt did not possess “immediately apparent” evidentiary value as required under the plain view doctrine. The appellate court rejected this argument, noting that the officer went to the hospital after a violent crime was reported and readily observed a bloodstain on the defendant’s clothes. The court listed several ways in which the clothes might have evidentiary value. The clothes could contain DNA from another person, powder from a gun, or hairs and fibers. The court noted it was standard practice to seize bloody clothing as evidence of criminal conduct and concluded that the evidentiary value of the bloody shirt was “immediately apparent.”
Second, the defendant challenged the officer’s legal right to be present while he was receiving medical treatment. The court looked to authority holding that law enforcement officers have the right to approach a person’s residence to inquire whether the person is willing to answer questions. The court found that the officers were similarly attempting to speak to victims of a violent crime at the hospital and that officers had a legal right to be present.
Finally, the defendant argued that even if the seizure of the shirt was lawful, the subsequent warrantless search of his DNA was unlawful because he had a reasonable expectation of privacy “over his genetic material.” The defendant stressed that he had not willingly or knowingly exposed his DNA to the public in seeking medical treatment after being shot. However, the court relied on State v. Barkley, 144 N.C. App. 514, 518 (2001), for the proposition that once law enforcement has lawfully obtained a blood sample, the defendant cannot assert a privacy interest in the secondary use of the sample. The court reasoned that once the sample has been lawfully removed from the body, no further search of the defendant’s person occurs when the sample is tested.
The court thus concluded that the trial court did not err in denying the defendant’s motion to suppress.
In statutory rape trial, statements of prosecutor and various witnesses did not constitute impermissible vouching; minimal leading questions on direct were permissible; evidence of prior statutory rape was admissible under Rules 404(b) and 403; prosecutor’s closing argument was not grossly improper; and admission of video evidence was not plain error.
State v. Johnson, COA24-836 (N.C. Ct. App. Aug. 5, 2026) (Henderson County) (Stading). The defendant was convicted at trial of multiple counts of statutory rape of a child fifteen years old or younger. The evidence at trial showed that the defendant engaged in vaginal intercourse with his stepdaughter, Madison (a pseudonym), over a period of time starting when she was 12 years old. Madison recanted her story after the defendant was charged, explaining she did so because she felt guilty for making her mom sad. She later withdrew this recantation and disclosed abuse to several people, including a physician’s assistant at a child advocacy center. The state presented 404(b) evidence that the defendant had previously forced a stepdaughter from a previous relationship to have anal and vaginal intercourse starting when the stepdaughter, Kate (a pseudonym), was six. On appeal, the defendant raised five issues.
The defendant first argued that the trial court committed plain error by allowing the prosecutor and various witnesses to vouch for Madison’s credibility. The defendant asserted that the prosecutor made improper statements during jury selection referring to “what happened” to Madison and the lack of an eyewitness to “the crime.” However, the Court of Appeals did not find the remarks to be improper, let alone “so grossly improper” that the trial court should have intervened, which is the standard for challenging a prosecutor’s remarks during jury selection. The defendant further challenged the portion of the direct examination of Madison asking her whether she told the truth to various witnesses and at the trial itself. The appellate court noted that it is improper to ask a witness whether the witness is being truthful with her testimony. However, the court concluded that any error did not rise to the level of plain error given that it was not probable that the jury would reach a different result absent this line of questioning. Furthermore, in context, the prosecutor was attempting to clarify which story was accurate given that Madison had previously recanted and then withdrawn the recantation. Finally, the defendant challenged the expert testimony of a physician’s assistant who testified that there was no evidence of injury given that “the last contact” had occurred three weeks ago. The defendant complained that this statement constituted vouching since it assumed sexual contact in the absence of physical evidence (in contravention of the North Carolina Supreme Court’s holding in State v. Stancil, 355 N.C. 266 (2002)). However, the Court of Appeals relied on State v. Perdomo, 276 N.C. App. 136, 140 (2021), in concluding that no error occurred, reasoning that the statement was not a “definitive diagnosis of sexual abuse,” but rather a contextualization of the expert’s opinion based on what Madison reported.
As a second issue, the defendant challenged the use of leading questions by the prosecutor when examining Madison. The appellate court noted the general rule prohibiting leading questions on direct examination, while also noting the well-established exception that leading questions may be used when examining a child, especially with regard to sensitive matters of a sexual nature. The court noted that Madison was 17 at the time of trial and still a minor, and thus the trial court’s decision to allow minimal leading questions did not constitute an abuse of discretion.
Third, the defendant challenged the admission of Rule 404(b) evidence of the defendant’s prior sexual abuse of Kate. The trial court had allowed the evidence to show knowledge, intent, common scheme or plan, modus operandi, and lack of accident. The Court of Appeals found that admission of the evidence was proper, noting that the courts have been “markedly liberal in admitting evidence of similar sex offenses by a defendant.” The court also engaged in an analysis of temporal proximity and similarity as is required when applying Rule 403 to evidence admitted under Rule 404(b). The court stressed that the defendant had been incarcerated for 14 years after being convicted of sexually abusing Kate, and thus the gap in time could be explained by lack of access to a victim. The court also found several similarities between the abuse of Kate and Madison: both were minor females, the defendant played a parental role with both, they were both living with him at the time of the abuse, both had their own bedrooms, and the abuse occurred on multiple occasions when their mothers were present. The court thus concluded that the trial court did not abuse its discretion in admitting the 404(b) evidence.
Fourth, the defendant challenged portions of the prosecutor’s closing argument. The defendant first contended that the prosecutor improperly expressed his personal opinion as to Madison’s credibility. The prosecutor made statements referring to Madison telling the jury “exactly what happened” and referred to her story as being “true” and “real.” However, the appellate court noted that it was permissible for the prosecutor to address Madison’s credibility using reasonable inferences, and even if the comments were improper, they were not so grossly improper and prejudicial as to violate Due Process. The defense also challenged portions of the closing argument as intended to sway the jury based on an emotional response. Again, however, the appellate court concluded that any impropriety in the closing argument did not amount to gross impropriety.
Finally, the defendant challenged the trial court’s decision to allow a video of Madison’s forensic interview before she testified, to decline to instruct the jury on the use of the forensic video, and to allow the prosecutor to play the video during closing. The appellate court rejected these arguments as inadequate to meet the high standards of plain error as to the introduction of the video and gross impropriety as to the use of the video in closing.
The appellate court thus concluded that the trial was free from reversible error.
Evidence that DSS attorney engaged in a regular practice of using “Custody and Visitation Agreements” to remove children from their parents without judicial oversight constituted sufficient evidence of obstruction of justice; the trial court did not err in instructing jury on aiding and abetting where the defendant advised and encouraged various DSS employees to engage in the practice; indictments were sufficient in that they alleged facts supporting essential elements of the charged offenses.
State v. Lindsay, COA25-344 (N.C. Ct. App. Aug. 5, 2026) (Macon County) (Hampson). The defendant was convicted of several counts of felony obstruction of justice and two counts of misdemeanor obstruction of justice after a jury trial. The defendant was the attorney for the Cherokee County Department of Social Services at the time of the incidents in question. The evidence showed that the defendant developed a process whereby DSS used “Custody and Visitation Agreements” (CVAs) to remove minor children from their parents without court oversight. There was no statutory or legal authority for these arrangements. The practice involved obtaining written consent from parents to relinquish their parental rights and place the children in the custody of other caretakers. In several cases, the parents were not informed of their right to an attorney. The defendant frequently recommended the practice for “stuck” or “weak” cases where the parents were not responsive to DSS’s inquiries and yet the evidence may not have been strong enough to prevail at a hearing. When questioned about whether the agreements were proper, the defendant told DSS employees that it would be fine as long as no one challenged the agreements in court. In addition, when a judge questioned the defendant at a meeting about his legal authority to enter into the agreements, he admitted there was none.
On appeal, the defendant challenged the sufficiency of the evidence. First, he claimed the state’s evidence failed to establish an obstructive act within the meaning of the offense. However, the Court of Appeals stressed that there need not be a pending official proceeding or investigation for acts to constitute obstruction of justice. The offense may be based on acts designed to obstruct potential proceedings or investigations. In the present case, the appellate court noted that the defendant used CVAs to avoid judicial proceedings created to protect the rights of parents and juveniles. In doing so, the defendant acted to impede or obstruct a potential judicial proceeding and thus the evidence was adequate as to this element. Second, the defendant challenged the “willfulness” element of the offense, contending that the state failed to establish that he acted purposely and deliberately in violation of the law. However, the appellate court side with the state, stressing that the defendant’s emails and verbal response to a judge at a meeting demonstrated his awareness that he lacked legal authority to enter into the CVAs, and yet he encouraged their use. The court thus concluded that sufficient evidence was presented on both elements challenged by the defendant.
The defendant also challenged the aiding and abetting jury instruction. However, substantial evidence showed that the defendant worked with other Cherokee County DSS employees to facilitate the use of CVAs. He “advised, encouraged, and aided” others in using them. Thus, the instruction was proper.
Finally, the defendant challenged the sufficiency of the indictments, asserting that they were defective for failure to allege conduct showing that he intended to interfere with an investigation. However, the Court of Appeals distinguished the indictments from those in State v. Wilkins, 295 N.C. App. 695 (2024), stressing that the indictments in the case at bar alleged that the defendant used CVAs to remove children from their parents “without court involvement” to “avoid judicial oversight.” The court reasoned that these references were adequate to allege that the defendant acted with intent to subvert a potential judicial proceeding. The defendant’s further argument that the indictments did not clearly allege the purpose of the CVAs was rejected by the court as a non-jurisdictional argument requiring some showing of prejudice after State v. Singleton, 386 N.C. 183 (2024). Absent such a showing, the court found no error as to the indictments.
The court thus found no error.
Prosecutor lacked authority to dismiss offense after jury returned verdict of guilty and charge resulted in conviction; flight instruction justified.
State v. Lofton, COA25-58 (N.C. Ct. App. Aug. 5, 2026) (Cumberland County) (Stading). The defendant was tried on an indictment charging him with first-degree burglary, second-degree kidnapping, assault with a deadly weapon with intent to kill, assault inflicting physical injury by strangulation, and assault on a female. The defendant was also indicted as a habitual felon. The charges arose from an incident in which the defendant and the victim, who had been dating for four months, got in an argument while driving back from a trip to Myrtle Beach with the victim’s two children. The defendant told the victim to let him out of the car because he had people who could pick him up, and the victim obliged to deescalate the situation. However, the defendant eventually came to her house later that night after she attempted to go to sleep. He banged forcefully on her window, kicked open her front door, and attacked her in her bedroom. She escaped outside and ran toward a patrol car, pointing out the defendant to a police officer. The officer saw the defendant run away in dark clothing. The officer followed the defendant to a fence line but could not locate him. He subsequently returned to his patrol car and drove to a nearby shopping center where he found the defendant wearing a white tank top. The defendant gave officers a false name prior to being arrested.
At trial, the defendant left during jury selection and did not return. The jury found the defendant guilty of second-degree kidnapping and assault on a female, acquitting him of the remaining three offenses. Subsequently, the state indicated that it would not be proceeding on the habitual felon indictment. The state filed a voluntary dismissal form listing the habitual felon offense but also including the misdemeanor of assault on female as an additional offense to dismiss. It was unclear whether the inclusion of the assault on female offense was a mistake. When the defendant turned himself around six weeks later, the court imposed consecutive sentences for the second-degree kidnapping conviction and the assault on a female conviction.
On appeal, the defendant first contended that the trial court lacked jurisdiction to sentence him for assault on a female because the offense had been dismissed after conviction but before sentencing. The appellate court held that the state lacked authority to dismiss the offense once the defendant is convicted. Under G.S. 15A-931(a), the prosecutor may enter a dismissal of a charge “in open court before or during the trial, or by filing a written dismissal with the clerk at any time.” The court noted that “at any time” was “on its face broad,” but interpreted the phrase in context to be referring to any time up until the end of trial. Further, the court stressed that a “charge,” being a formal accusation and preliminary step to prosecute, is different from a “conviction,” which is the act of finding someone guilty or the state of having been proved guilty. The court further noted that if the state could dismiss a matter at any time after conviction, this would produce absurd results. In sum, the court held that the state was without authority to dismiss the assault on female offense after the jury returned a verdict finding the defendant guilty, even though he not been sentenced yet. Thus, the court did not err in sentencing the defendant for assault on a female once he turned himself in.
The defendant also challenged the trial court’s instruction on the flight doctrine. However, the appellate court found sufficient evidence to support the instruction given the officer’s observation of the defendant running away and the defendant’s being found in a shopping center some 150 to 200 yards after having apparently changed clothing.
The court thus found no error.
