This post summarizes published criminal opinions from the Supreme Court of North Carolina released on August 14, 2026. The court released twelve such opinions on that day, some quite lengthy. Therefore, this post summarizes the first six opinions. The remaining opinions will be summarized in a forthcoming post.

(1) In a child sexual abuse trial, any improper vouching by expert witnesses did not rise to the level of plain error. (2) An indictment for statutory sexual offense with a child by an adult was sufficient because it alleged the elements of the offense, notwithstanding inaccuracies in the caption and the statutory citation.

State v. Wingate, No. 184A25 (N.C. Aug. 14, 2026) (Wake County) (Earls). The defendant sexually abused his twelve-year-old son, including by anal penetration. The child revealed some of the abuse to his mother, then reported more to a therapist.

The defendant was indicted on several counts of taking indecent liberties with a child and one count captioned “first degree statutory sex offense.” The latter count cited G.S. 14-27.29, which defines the crime of first degree statutory sex offense, but the indictment alleged the elements of the more serious crime of statutory sexual offense with a child by an adult, which is set forth in G.S. 14-27.28. The jury was instructed on the elements of the more serious offense, but the verdict sheet described the offense as “first degree statutory sex offense.” The jury convicted the defendant of four counts of indecent liberties and the sex offense. The trial judge sentenced the defendant to the statutory minimum of 300 months that is required for the crime of statutory sexual offense with a child by an adult, with additional time for the indecent liberties convictions.

The Court of Appeals reversed, concluding (1) that two of the State’s witnesses – a clinical therapist and a pediatrician – improperly vouched for the son’s credibility, and (2) that the sex offense indictment failed to provide the defendant with sufficient notice because it was unclear which offense it sought to charge. Joe Hyde’s summary of the opinion of the Court of Appeals is here.

The Supreme Court unanimously reversed the Court of Appeals. As to the vouching, the court declined to determine whether it was proper or improper. Instead, it ruled that the admission of the testimony did not rise to the level of plain error because the defendant could not show that absent that testimony, the result of the trial probably would have been different. The son’s testimony alone was enough to convict, and two other experts provided unquestionably admissible testimony that tended to support and amplify the son’s testimony.

As to the indictment, the court acknowledged that the caption of the indictment and the statutory citation were not consistent with the factual allegations it contained. But it concluded that the factual allegations provided sufficient notice: “[T]he factual assertion in the indictment that [the defendant] was over eighteen years old showed from the beginning the State’s intention to charge him with statutory sexual offense with a child by an adult. Taking the indictment as a whole renders the incorrect statutory reference akin to a scrivener’s error.” Similarly, “the incorrect statutory references that occurred intermittently throughout the proceedings were harmless instances of lapsus linguae.”

An ineffective assistance of counsel claim is procedurally barred and may not be raised in an MAR when the claim is “apparent from the record” and so could have been raised on direct appeal, even if it might have been dismissed on direct appeal for further investigation

State v. Gupton, No. 444PA19-2 (N.C. Aug. 14, 2026) (Guilford Co.) (Berger). The defendant and another man went together to a hotel room. The State’s evidence suggested that the defendant assaulted and immobilized the other man, then set fire to the room, killing the other man. The defendant was charged with, and convicted of, first-degree murder and first-degree arson. His convictions were affirmed on direct appeal.

He then filed an MAR alleging ineffective assistance of counsel (IAC). He contended that his trial attorneys failed to confront and challenge the State’s case, including by contesting the cause of the fire, and instead focused on a legally deficient insanity defense. A superior court judge ruled that the MAR was procedurally barred under G.S. 15A-1419(a)(3), which precludes claims where “[u]pon a previous appeal the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so.” The Court of Appeals affirmed.

The Supreme Court of North Carolina granted the defendant’s petition for review. It also affirmed. The majority opinion acknowledged that many IAC claims cannot be adequately raised on direct appeal, but stated that when a claim is “apparent from the record,” it must be raised – even if it may be dismissed because further development of facts outside the record is required: “[A] claim that is apparent from the transcript must be brought even if it may ultimately be dismissed for further investigation.” The majority concluded that the defendant’s claims were “apparent from the record,” noting that the defendant’s MAR cited the trial transcript over 200 times and virtually never cited any materials beyond the record, such as affidavits from trial counsel.

Justice Earls, joined by Justice Riggs, dissented. She would have ruled that an IAC claim is barred under G.S. 15A-1419(a)(3) only when the direct appeal record contains “sufficient information to permit the reviewing court to make all the factual and legal determinations necessary to allow a proper resolution of the claim in question.” If further factual development is required, the claim need not be raised. Applying that standard, she would have ruled that the defendant’s IAC claim required an examination of why counsel chose to pursue the insanity defense and what evidence might have been available to challenge the State’s case in other ways. In summary, she viewed the majority’s approach as “requir[ing] formalistic and perfunctory preservations of rights on direct appeal to skirt a procedural bar.”

A nutshell version of this case might be that the majority held that a defendant is required to present an IAC claim on direct appeal when there is enough evidence in the record to identify the claim, while the dissent would have ruled that a defendant must only do so when there is enough evidence in the record to decide the claim.

Harbison is limited to cases in which a defendant is “wholly surprised” by counsel’s concession of guilt. Otherwise, a prejudice inquiry under Strickland is required, and prejudice cannot be shown when counsel concedes guilt to a lesser offense but a jury convicts of a greater.

State v. Farook, No. 457PA20-2 (N.C. Aug. 14, 2026) (Rowan Co.) (Newby). The defendant caused a motor vehicle collision that killed two people. He was charged with second-degree murder and other offenses. Before and during trial, defense counsel – with the defendant’s consent – stipulated to various facts and elements of several charged offenses. In closing, defense counsel stated: “We’re not here to ask you to find him not guilty . . . we ask you to find him guilty of misdemeanor death by motor vehicle.” The jury convicted the defendant of second-degree murder and other crimes.

He appealed, contending that trial counsel provided ineffective assistance of counsel (IAC) by conceding his guilt without his consent in violation of the rule of State v. Harbison, 315 N.C. 175 (1985). The Court of Appeals concluded that the defendant’s willingness to stipulate to various facts, or even to all the elements of an offense, did not necessarily amount to a willingness to admit guilt to the offense as a whole. It therefore remanded for an evidentiary hearing on whether the defendant consented to counsel’s acknowledgment of his guilt of misdemeanor death by motor vehicle.

The State petitioned the Supreme Court, which allowed review. The majority opinion notes that IAC claims normally are governed by the two-part test of Strickland v. Washington, 466 U.S. 668 (1984), which requires a defendant to show both deficient performance and prejudice. However, under United States v. Cronic, 466 U.S. 648 (1984), some errors are so clearly damaging that prejudice may be presumed. In Harbison, the court determined that conceding a client’s guilt without consent is per se prejudicial (i.e., is structural error) under Cronic.

According to the majority, in Florida v. Nixon, 543 U.S. 175 (2004), the Supreme Court of the United States “clarified that the proper analysis of IAC claims when a defendant asserts that his trial counsel conceded his guilt without his knowing, voluntary consent is the routine application of Strickland.” (This characterization of Nixon was not shared by the dissent, as described below.)

Still, the majority did not go so far as to overrule Harbison entirely. Instead, it concluded that Harbison was correctly decided on its facts because it involved a surprise concession by counsel that was at odds with the defendant’s strategy throughout the trial. Thus, it involved counsel “entirely failing to oppose the State’s case or to function as his client’s advocate,” properly bringing the case under Cronic.

In the case at bar, by contrast, counsel “employed a concession strategy to which defendant agreed, at least in part.” Because the defendant was not “wholly surprised” by counsel’s admission of guilt, the majority concluded that Strickland, rather than Cronic, applied. And the defendant could not show prejudice under Strickland because counsel conceded his guilt only to misdemeanor death by vehicle, but the jury found him guilty of second-degree murder. The court “determine[d] as a matter of law that defendant cannot show prejudice from counsel’s concession of his guilt to the lesser included offenses.”

Justice Berger concurred in the result only. He would have held that Cronic applies only when a defendant “expressly object[s] to the concession and counsel proceed[s] anyway,” which he indicated would “usually be apparent from the record” as it was in McCoy v. Louisiana, 584 U.S. 414 (2018). In his view, that would be a more faithful application of federal law and a less confusing rule than the “wholly surprised” test embraced by the majority.

Justice Riggs, joined by Justice Earls, dissented. She argued that the majority was engaged in “judicial activism” by “eradicating precedent from our books with which it philosophically or politically disagrees.” She offered a narrower reading of Nixon, emphasizing that it was a capital case and that “counsel’s concession appear[ed] to be a part of trial strategy that has been discussed and disclosed to the defendant, who neither consent[ed] nor object[ed] to the strategy.” She would have continued to apply Harbison to non-capital cases involving concessions of guilt without affirmative consent and would have remanded this case for an inquiry into whether the defendant had agreed to the admissions made by counsel.

There was sufficient evidence that a defendant constructively possessed a gun where it was found just steps from the site of his arrest, in a bedroom he shared with his girlfriend.

State v. Norris, No. 177PA24 (N.C. Aug. 14, 2026 ) (Rutherford Co.) (Allen). Forest City officers went to what they understood to be the defendant’s home to serve an arrest warrant on him. They entered the home and arrested the defendant near the front door. Because they saw drugs in the home, they asked the defendant’s girlfriend – who was also present – for consent to search the residence. She consented. In a bedroom just off the entryway, they found clothes and other items belonging to the defendant as well as items belonging to his girlfriend. They also found a gun in a dresser. The drawer in which the gun was found contained toiletries such as “hairspray and other feminine products.” The girlfriend claimed that the gun was hers and denied that the defendant lived at the home, though she admitted that he stayed there sometimes.

A grand jury indicted the defendant for being a felon in possession of a firearm. A jury convicted him, and he appealed. The Court of Appeals reversed, finding insufficient evidence that the defendant constructively possessed the gun.

The State sought further review in the Supreme Court, which unanimously reversed the Court of Appeals. Constructive possession requires the intent and ability to control an item that is not in a defendant’s immediate physical possession. When the item is located in a place over which the defendant has exclusive authority, constructive possession is easily found. When, as here, the item is located in a place over which the defendant has joint or nonexclusive authority, incriminating circumstances must tie the defendant to the item.

The court looked specifically to the circumstances listed in State v. Chekanow, 370 N.C. 488 (2018):

(1) the defendant’s ownership and occupation of the property . . . ; (2) the defendant’s proximity to the contraband; (3) indicia of the defendant’s control over the place where the contraband is found; (4) the defendant’s suspicious behavior at or near the time of the contraband’s discovery; and (5) other evidence found in the defendant’s possession that links the defendant to the contraband.

Considering the evidence in the light most favorable to the State, the court found substantial evidence that the defendant occupied the property, including his name on the mailbox and his clothes and papers in the bedroom. It also found proximity to the gun, which was located only three or four steps from where the defendant was arrested. Finally, it found that the defendant engaged in suspicious behavior by rushing inside the home when police arrived. Together, this was sufficient to support the jury’s finding of constructive possession.

So long as a trial judge follows G.S. 15A-1215(a) when replacing a juror during deliberations, there is no constitutional problem regardless of the exact timing of the replacement or the precise wording used in the court’s instructions to the jury about re-starting deliberations.

State v. Thomas, No. 248PA24 (N.C. Aug. 14, 2026) (Wake Co.) (Dietz). Previously, alternate jurors could not become part of the jury after deliberations began. In 2021, the General Assembly amended G.S. 15A-1215(a) to allow alternate jurors to replace disqualified or discharged jurors even after deliberations have begun, with the proviso that the jury must be instructed to begin its deliberations anew. S.L. 2021-94.

In State v. Chambers, 387 N.C. 521 (2025), the state supreme court upheld the new procedure against the contention that it violated the constitutional requirement that a jury must be comprised of twelve people. Under the statute, no more than twelve members serve at any one time, and any influence of any departing juror is removed by the requirement that the jury begin deliberations again.

In this murder case, an alternate juror was substituted after deliberations began. The judge instructed the jury that it was “required to start the deliberations over.” The defendant contended that the replacement was unconstitutional and sought to distinguish Chambers by noting various differences: deliberations had gone on longer before substitution in his case than in Chambers; the judge in his case used different words to convey to the jury the requirement to start deliberations anew; and the judge instructed the jury at the end of a day rather than at the beginning of a day. The Supreme Court determined that these differences were inconsequential and generally rejected the idea that Chambers invites a case-by-case inquiry into various details about the substitution. So long as the trial judge complies with G.S. 15A-1215(a), there is no constitutional problem.

The court ruled that the defendant’s other argument – concerning the denial of his motion to suppress ankle monitoring data about his location – was not preserved because he did not renew his objection to the evidence during trial.

Justice Berger wrote separately to express his view that the Court of Appeals had wrongly followed its own decision in Chambers when it decided this case, even though the Supreme Court has stayed that decision pending review, depriving the Court of Appeals decision of precedential weight.

Justice Earls, joined by Justice Riggs, dissented. She would have ruled that the trial judge failed to comply with G.S. 15A-1215(a). She viewed the judge’s instructions to the jury about beginning its deliberations anew as “tentative and confusing.”

The defendant restrained the victim beyond the extent necessary to murder her by suffocation, so the defendant was properly convicted of kidnapping as well as murder.

State v. Moore, No. 285A24 (N.C. Aug. 14, 2026) (Cumberland Co.) (Dietz). The defendant bound his wife with handcuffs, zip ties, and cables, then suffocated her. He was charged with, and convicted of, first-degree murder and first-degree kidnapping. The Court of Appeals vacated the kidnapping conviction, determining that the restraint used to support the kidnapping charge was an inherent part of the murder in violation of State v. Fulcher, 294 N.C. 503 (1978).

The Supreme Court granted review and reversed. The court looked to State v. Prevette, 317 N.C. 148 (1986), in which it had ruled that several restraints were inherent to a murder by suffocation because they prevented the victim from removing the gag in her mouth. The Court of Appeals majority found this case indistinguishable from Prevette, but the Supreme Court concluded that this case was distinguishable. The victim here was restrained far beyond what was necessary to prevent her from stopping the suffocation, including bindings “that contorted her body and pulled her [already bound] hands toward her knees and feet.”

Chief Justice Newby concurred in the result only. He would have reconsidered Fulcher, the case that originally established the rule that a kidnapping conviction may not be based on restraint that is inherent to the commission of another felony. In his view, the Fulcher rule is not required by the text of the kidnapping statute, is not required by the Double Jeopardy Clause, and has created unnecessary disputes in application. (The majority viewed reconsideration of Fulcher as not within the scope of its review based on the dissent in the Court of Appeals.)