This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on May 20, 2026.
Trial counsel was not ineffective on multiple grounds asserted by defense; however, on whether it was ineffective to fail to use CFE report to attack complainant’s credibility, the court remanded for a limited evidentiary hearing.
State v. Gentry, COA25-22 (N.C. Ct. App. May 20, 2026) (Person County) (Gore). The defendant was convicted at trial of statutory sex offenses, indecent liberties, and habitual-felon status. On appeal, the defendant raised several claims related to ineffective assistance of counsel (“IAC”) and further requested review of the trial court’s in-camera determination as to which confidential records should be shared with the defense.
The defense’s first claim of IAC was that trial counsel was ineffective in failing to present a Child and Family Evaluation (“CFE”) Report to the jury that the trial court had released to counsel in response to a request under Pennsylvania v. Ritchie, 480 U.S. 39 (1987). The defense asserted that use of the report would have affected the jury’s perception of the complainant’s credibility. However, the Court of Appeals found that it was impossible to determine from the cold record why trial counsel did not use the report. It might have been because no path existed to properly introduce the report, for strategic reasons, or otherwise. The court remanded for a focused evidentiary hearing.
As to the defense’s other IAC-related claims, the court denied relief.
First, the defense contended that trial counsel was ineffective in failing to object when the state elicited testimony from the complainant that what she said in court was “the truth” (distinguishing her in-court statements from earlier denials). However, the court found that the defense could not demonstrate prejudice under Strickland v. Washington, 466 U.S. 668 (1984), even assuming that trial counsel’s performance was deficient.
Second, the defense argued that trial counsel should have objected to a portion of a clinic interview in which the complainant said that the defendant’s spouse had stated, “I really believe… something happened to you.” However, the court again concluded that even if trial counsel should have objected to the statement as impermissible vouching, the remark was isolated and the defense could not establish prejudice.
Third, the defense argued that trial counsel was ineffective in failing to secure the attendance of a witness who could have authenticated a three-way call shedding light on the complainant’s potential motives to fabricate. Again, the court concluded that the defense could not show prejudice given that the call was ambiguous and the jury had already heard testimony on the same subject matter.
Fourth, the defense argued that trial counsel should have called the defendant’s eldest daughter as a defense witness. However, the court rejected this argument after the state offered several reasons why calling the witness would present “substantial strategic risks.”
Fifth, the defense claimed that trial counsel was ineffective in failing to introduce a letter allegedly written by the defendant’s nephew undermining the complainant’s credibility. However, the court found no available path to admission of the letter and thus rejected the argument.
Concluding its analysis of the IAC claims, the court determined that the defense failed to establish cumulative error as the defense did not show multiple significant deficiencies.
As a separate issue, the appellate court conducted an independent examination of sealed records that the trial court had reviewed pursuant to the defense’s Ritchie request. The appellate court affirmed the trial court’s decision to release the ten-page CFE and twenty-eight pages of DSS records, identifying no additional records favorable to the defense and material to guilt or punishment.
Judge Stading wrote separately, concurring with the majority as to all but the decision to remand for a limited evidentiary hearing on the question of whether counsel was ineffective in not using the CFE report at trial. Judge Stading dissented on this point, reasoning that the proper course of action when the cold record is insufficient to resolve an IAC claim is generally to dismiss the appeal without prejudice to the defendant’s right to file a motion for appropriate relief (except in cases involving alleged Harbison error).
Confrontation violation where surrogate expert testimony offered on blood alcohol concentration.
State v. Holt, COA25-560 (N.C. Ct. App. May 20, 2026) (Wake County) (Griffin). The defendant was convicted of driving while impaired after trial in superior court. On appeal, he argued that his confrontation rights were violated when an expert in forensic chemistry and forensic toxicology testified as to the defendant’s blood alcohol concentration. The expert did not perform the analysis and was not involved in the testing, but rather conducted a technical and administrative review of the testing expert’s work (the testing expert had retired).
The Court of Appeals agreed with the defendant. Under Smith v. Arizona, 602 U.S. 779 (2024), when an expert relies on the work of another expert in forming an opinion and the testifying expert is effectively a “mouthpiece” for the expert who conducted the analysis, the testimony is hearsay, since the underlying conclusions of the analyzing expert are being offered for the truth of the matter asserted. The court distinguished between analysis based on purely machine-generated processes (a machine cannot offer testimonial statements), and analysis involving human actions not revealed in machine-produced data. In the present case, where the blood analysis involved human observation of the sample for “possible clotting, fermentation, pipetted bubbles, or homogeneity in the blood sample, confirmation of the sample’s sufficient blood volume, and examination of packaging mistakes or vial leaks,” the defendant was denied the opportunity to probe the testing expert’s work when the reviewing expert took the stand as a surrogate. Furthermore, the statements were testimonial given that the analysis was conducted at the Wake City-County Bureau of Identification solely to further the police investigation. As the confrontation violation was not harmless beyond a reasonable doubt, the error was prejudicial and the defendant received a new trial.
No jurisdiction to try infractions in superior court where the infractions were not lesser-included violations of a crime and the defendant did not admit responsibility; probationary period longer than statutory maximum required findings of facts in support.
State v. Myers, COA25-631 (N.C. Ct. App. May 20, 2026) (New Hanover County) (Zachary). After trial, a jury found the defendant guilty of felony fleeing to elude arrest and misdemeanor resisting a public officer, and responsible for the infractions of lane change signal violation and failure to carry a valid driver’s license. On appeal, the defendant contended that the evidence was insufficient that he committed a lane change signal violation and that his sentence of 30 months on probation was not supported by requisite findings of fact under G.S. 15A-1343.2(d)(2).
The Court of Appeals resolved the defendant’s first argument by sua sponte raising the question of subject-matter jurisdiction for the infractions. Under G.S. 7A-271(d), the superior court only has jurisdiction to dispose of an infraction where the infraction is a lesser-included violation of a crime properly before the court or where the defendant admits responsibility to the infraction. As neither of these circumstances applied, the Court of Appeals concluded that the trial court lacked jurisdiction to enter judgment for the infractions. As the misdemeanor conviction was consolidated with the infractions in one judgment, this judgment was vacated and remanded for resentencing on the misdemeanor alone. In addition, should the trial court on remand choose to impose a probationary period longer than the statutory maximum of 24 months, it was required to make findings in support.
Extension of probation was not authorized under G.S. 15A-1342(a) as it did not occur in the last six months of the original period of probation and was improper under G.S. 15A-1344(d) as the trial court did not make requisite findings of good cause to extend; the trial court lacked jurisdiction to revoke probation after original period expired.
State v. Smith, COA25-713 (N.C. Ct. App. May 20, 2026) (Craven County) (Carpenter). The defendant was placed on probation for 36 months after entering an Alford plea on 16 felonies in November 2020. In December 2021, the state filed a probation violation report, and in April 2022, the state requested a probation extension of 24 months to reset the payment plan for restitution. Defense counsel agreed and the court extended the probation. The trial court did not make findings of good cause under G.S. 15A-1344(d), nor did the written order specify that the extension was entered pursuant to G.S. 15A-1342(a), which allows for certain extensions in the last six months of the original period of probation. Subsequent violation reports were filed in 2022 leading to a modification of various financial obligations. Additional violation reports were filed in 2024, and a hearing on these allegations resulted in the defendant’s probation being revoked and his sentence being activated. The defendant filed a handwritten, deficient notice of appeal.
As the defendant failed to timely file his notice of appeal, he sought review through a petition for writ of certiorari. The Court of Appeals granted the defendant’s petition, concluding that he had met his burden of showing that an error was probably committed and that extraordinary circumstances (such as an unwarranted extension of probation) existed. Addressing the merits of the defense’s claims, the Court of Appeals agreed that the trial court lacked authority to extend the defendant’s probation in 2022. The extension was not authorized by G.S. 15A-1342(a) because it did not occur during the last six months of the original period of probation, and the extension was not valid under G.S. 15A-1344(d) because the trial court made no findings of good cause for the extension. As the extension was not proper, the period of probation expired in November of 2023, and the trial court lacked jurisdiction to revoke the defendant’s probation in 2024. The court vacated the judgment and remanded for further proceedings.