State v. Tadlock

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-459

Filed 2 July 2025

Haywood County, Nos. 22CRS050635-430, 22CRS050637-430, 22CRS000332-430,

22CRS000333-430, 22CRS000334-430

STATE OF NORTH CAROLINA

v.

BRYAN SCOTT TADLOCK

Appeal by Defendant from Judgments entered 26 October 2023 by Judge Gary

M. Gavenus in Haywood County Superior Court. Heard in the Court of Appeals 16

January 2025.

Attorney General Jeff Jackson, by Assistant Attorney General Danielle M.

Orait, for the State.

Phoebe W. Dee for Defendant-Appellant.

HAMPSON, Judge.

Factual and Procedural Background

Bryan Scott Tadlock (Defendant) appeals from Judgments entered upon jury

verdicts finding him guilty of First-Degree Kidnapping, two counts of Assault by

Strangulation, Assault with a Deadly Weapon Inflicting Serious Injury, and First-

Degree Forcible Rape. The Record before us, including evidence presented at trial,

tends to reflect the following:

On 11 July 2022, Defendant was indicted for First-Degree Kidnapping, First-

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Degree Forcible Rape, Assault with a Deadly Weapon with Intent to Kill or Inflict

Serious Injury, two counts of Assault by Strangulation, and Attempted First-Degree

Murder.

The matter came on for trial on 23 October 2023. At trial, the State’s evidence

tended to show Defendant and the victim, K.S., were married and lived together with

K.S.’s teenaged daughter, T.S.1 During the week of 13 March 2022, Defendant began

acting “[v]ery distant and quiet.” On the evening of 18 March 2022, K.S. picked

Defendant up from work and the two arrived home at approximately 11:00 p.m. T.S.

had left earlier in the day to stay with her biological father for the weekend. Once

inside, Defendant began drinking. Due to Defendant’s “demeanor”, K.S. went to bed

“as soon as [they] got home.”

K.S. testified she woke up at “about 1:30 [a.m.]” when Defendant entered their

bedroom screaming at her. When K.S. ignored Defendant, he left the room and went

outside. Defendant returned a few minutes later with a loaded gun and pointed it at

K.S. as she laid in bed. He told her to “[g]et up or I’m going to make you get up.”

K.S. complied and Defendant “held the gun against [her] head,” demanding K.S. go

get a necklace they had given to T.S. for her birthday. K.S. retrieved the necklace

from the living room and brought it into the kitchen at Defendant’s behest.

Defendant told K.S. to get a hammer. When K.S. resisted, Defendant “grabbed [K.S.]

1 We use initials to protect the privacy of the victim and her minor daughter.

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by [her] hair and kind of dragged [her] . . . to go get the hammer.” Defendant “pinned

[K.S.’s head] down to the stove” and screamed for her to destroy the necklace. After

Defendant forced the gun’s barrel into the back of her throat, K.S. “started hitting

the necklace with the hammer.” The two began to fight, and Defendant “wrapped his

hands around [K.S.’s] neck” from behind and “started choking [her] and just wouldn’t

stop.” K.S. described a struggle between herself and Defendant, during which the

two fell to the floor. Defendant continued to strangle K.S. with his hands. “At some

point” Defendant set the gun down, and K.S. “threw it across the room.” Defendant

proceeded to use his arm around K.S.’s throat to strangle K.S. until she fell

unconscious.

When K.S. regained consciousness, Defendant helped her off the floor.

Defendant apologized to K.S., found painkillers for her, and helped her clean herself

up. He alleged T.S. had made sexual advances toward him when the family watched

a movie together in the week prior, and K.S. “had to be taught a lesson[.]”

Around 4:30 a.m., Defendant told K.S. she “needed to go get some rest and that

he would sleep on the couch.” K.S. asked Defendant to join her in bed instead,

“[b]ecause if he’s on the couch, [she] can’t get to the door.” When the pair laid down,

Defendant initiated sex with K.S. K.S. testified, in the hope she “would live through

what [she] thought [she] wasn’t going to live through,” she “did whatever [Defendant]

wanted[.]” Eventually, Defendant fell asleep and K.S. “ran out” to go to the hospital.

At the close of the State’s evidence, defense counsel moved to dismiss the

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charges of Attempted First-Degree Murder, First-Degree Forcible Rape, Assault with

a Deadly Weapon with Intent to Kill, and First-Degree Kidnapping. Defense counsel

expressly chose not to challenge the two charges of Assault by Strangulation, stating:

“Now, with respect . . . to the assault by strangulation, I can’t stand here in good faith

and ask the court to dismiss those.” The trial court denied defense counsel’s Motion.

Defense counsel renewed its Motion at the close of all evidence. The trial court, sua

sponte, requested both sides present arguments as to whether the evidence supported

two separate charges of Assault by Strangulation. For its part, defense counsel said

it would leave the issue in the trial court’s discretion:

[Defense Counsel]: Judge, the only thing, in both of the

indictments, the language is talking about and/or, you know, how

the assaults occurred. It could have been conceivably

consolidated into one indictment. I can see how you break it

down. I can see how you could have added an extra “and/or” and

just consolidated into one indictment that way. But I’ll just leave

it in the court’s discretion, Judge. I think you know more about

this than I do. I’ll leave it in the court’s discretion about how you

want to proceed on it.

The trial court denied defense counsel’s Motion again, finding “sufficient evidence of

each and every element of each and every crime to submit to this jury.”

Defense counsel also requested the trial court instruct the jury on the defense

of voluntary intoxication. The trial court denied this request. During closing

arguments, the prosecutor argued

the thing about alcoholics is they can drink and they can drink

and they can drink and they can drink. They can blow super high

blood alcohol levels and still function. They can still know right

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from wrong. They still know what they’re doing. And how do you

know that he knew what he was doing? “I'm sorry. I’m sorry.

You’re not going to call the cops, are you?” In those text messages,

did you see any typos? When somebody’s drunk and they’re

typing, there’s usually some typos. None. This is methodical. It’s

thought out. It’s planned. He knows exactly what he’s doing. But

the common excuse and the way to diminish the bad behavior is,

“I was drunk. I’m sorry. You know I didn’t mean it, honey. I just

had too much to drink. I love you. I’m going to protect you. I’ll

never do it again.” And a wife is going to hope and pray that that’s

true.

Defense counsel raised no objections.

On 26 October 2023, the jury returned verdicts finding Defendant guilty of

First-Degree Kidnapping, both charges of Assault by Strangulation, Assault with a

Deadly Weapon Inflicting Serious Injury, and First-Degree Forcible Rape. The jury

found Defendant not guilty of Attempted First-Degree Murder. The trial court

entered Judgments in accordance with the verdicts and sentenced Defendant to 73 to

100 months imprisonment for Kidnapping; 6 to 17 months imprisonment for each

charge of Assault by Strangulation; 25 to 42 months imprisonment for Assault with

a Deadly Weapon Inflicting Serious Injury; and 240 to 348 months imprisonment for

First-Degree Forcible Rape. The trial court ordered all sentences to run

consecutively. The trial court also ordered Defendant to register as a sex offender for

his natural life and to pay a $25,000 fine. Defendant orally gave Notice of Appeal in

open court.

Issues

The issues on appeal are whether the trial court erred by: (I) refusing to

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instruct the jury on the defense of voluntary intoxication; (II) denying Defendant’s

Motion to Dismiss one charge of Assault by Strangulation; (III) failing to distinguish

between the injuries caused by each Assault by Strangulation; (IV) failing to

intervene ex mero motu during the State’s closing arguments; (V) assessing a $25,000

fine against Defendant at sentencing.

Analysis

I. Voluntary Intoxication Instruction

Defendant first argues the trial court erred in denying his request to instruct

the jury on voluntary intoxication. Defendant contends he was entitled to a jury

instruction on voluntary intoxication because the evidence, taken in the light most

favorable to Defendant, tended to show he had been drinking for at least three hours,

drank at least half of a fifth of whiskey, was behaving abnormally, broke a glass, was

too impaired to have sex, ultimately passed out after assaulting K.S., and there were

numerous bottles of alcohol in the part of the home where Defendant had been that

evening. Thus, Defendant asserts, there was substantial evidence supporting the

conclusion he could not form the specific intent to support his convictions for First-

Degree Kidnapping and First-Degree Forcible Rape,2 such that he was entitled to an

instruction on voluntary intoxication.

2 Defendant was charged with four specific-intent crimes—First-Degree Kidnapping, First-

Degree Forcible Rape, Attempted First-Degree Murder, and Assault with a Deadly Weapon with

Intent to Kill—but convicted only of First-Degree Kidnapping and First-Degree Forcible Rape.

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“A trial court must give a requested instruction if it is a correct statement of

the law and is supported by the evidence.” State v. Haywood, 144 N.C. App. 223, 234,

550 S.E.2d 38, 45 (2001) (citing State v. Rose, 323 N.C. 455, 458, 373 S.E.2d 426, 428

(1988)). We review whether a defendant was entitled to a jury instruction on

voluntary intoxication de novo to determine whether the evidence supported such an

instruction when considered in the light most favorable to the defendant. State v.

Mercer, 373 N.C. 459, 462, 838 S.E.2d 359, 362 (2020) (citing State v. Mash, 323 N.C.

339, 348, 372 S.E.2d 532, 537 (1988)).

“In certain instances voluntary drunkenness, while not an excuse for a

criminal act, may be sufficient to negate the requisite intent element. However, no

inference of the absence of [specific intent] arises from intoxication, as a matter of

law.” Mash, 323 N.C. at 347, 372 S.E.2d at 537 (alteration, citations and quotation

marks omitted). The burden is on the defendant to “produce substantial evidence

which would support a conclusion by the judge that he was so intoxicated that he

could not form” the requisite intent. Id. at 346, 372 S.E.2d at 536.

“Evidence of mere intoxication, however, is not enough to meet defendant’s

burden of production.” Id. “The evidence must show that at the time of the [crime]

the defendant’s mind and reason were so completely intoxicated and overthrown as

to render [her] utterly incapable of forming [specific intent].” State v. Meader, 377

N.C. 157, 162, 856 S.E.2d 533, 538 (alterations in original) (quoting Mash, 323 N.C.

at 346, 372 S.E.2d at 536). Absent such evidence, a trial court is not required to

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instruct the jury on voluntary intoxication. Id.

Although the Record indicates Defendant had been drinking for several hours

before the incident in question, evidence of mere intoxication is insufficient to require

a jury instruction on voluntary intoxication. Mash, 323 N.C. at 346, 372 S.E.2d at

536. We analyze whether a defendant was unable to form the requisite intent because

of his intoxication based on his actions leading up to the incident. Id. In Mash, the

defendant was charged with first-degree murder stemming from an assault on

multiple people. Id. at 342-43, 372 S.E.2d at 534-35. There, the evidence presented

at trial included testimony the defendant had been drinking alcohol for at least seven

hours; “swerved” his car while driving to buy more alcohol; his eyes were dilated, and

his eyes and face were red; he was “sweating”; and he had difficulty speaking and

walking. Id. at 340-42, 372 S.E.2d at 533-34. The Court held this evidence was

sufficient to warrant a voluntary intoxication instruction. Id. at 348, 372 S.E.2d at

538.

Here, there is not substantial evidence Defendant could not control himself or

was so intoxicated he could not form the intent for First-Degree Kidnapping and

First-Degree Forcible Rape. Unlike the defendant in Mash, there was no evidence

Defendant had trouble speaking or walking. Also unlike in Mash, the Record does

not indicate Defendant engaged in inexplicable behavior immediately prior to

attacking K.S.; K.S. testified Defendant’s demeanor and behavior had been “off” for

an entire week leading up to the incident. Moreover, after the incident, Defendant

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helped K.S. get up from the floor, helped clean her up, brought her pain medication,

and apologized, saying, “I’m sorry you had to go through that, but I had to teach you

a lesson.” Indeed, Defendant’s apology tends to indicate he appreciated the nature of

his actions. Thus, although there was evidence Defendant was intoxicated, there was

not substantial evidence—even taken in the light most favorable to Defendant—

Defendant was intoxicated to the point he could not control himself and could not

form the specific intent required to support the charges of First-Degree Kidnapping

and First-Degree Forcible Rape. See Meader, 377 N.C. at 162, 856 S.E.2d at 538.

Therefore, the trial court did not err by not instructing the jury as to Defendant’s

voluntary intoxication.

II. Motion to Dismiss

Defendant argues the trial court erred by denying his Motion to Dismiss one of

the charges of Assault by Strangulation. As a threshold matter, we note Defendant

did not actually make a motion to dismiss either charge of Assault by Strangulation.

Rather, defense counsel moved to dismiss all charges except the two charges of

Assault by Strangulation. Neither party has addressed preservation of this issue on

appeal.

“In a criminal case, a defendant may not make insufficiency of the evidence

to prove the crime charged the basis of an issue presented on appeal unless a motion

to dismiss the action . . . is made at trial.” N.C.R. App. P. 10(a)(3) (2024). Our

Supreme Court has held a timely motion to dismiss “preserves all issues related to

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the sufficiency of the evidence for appellate review[,]” regardless if the defendant

stated the grounds for his motion. See State v. Golder, 374 N.C. 238, 249, 839 S.E.2d

782, 790 (2020). Here, by contrast, rather than failing to state upon what grounds he

was moving to dismiss the charges of Assault by Strangulation, defense counsel

expressly excluded the charges of Assault by Strangulation from his Motion to

Dismiss.

The trial court, however, raised the issue of whether the evidence was

sufficient to support two charges of Assault by Strangulation. At that point, defense

counsel argued the charges could have been “consolidated into one indictment.” After

hearing arguments from the State and defense counsel, the trial court found there

was sufficient evidence “of each and every element of each and every crime[,]” such

that both charges of Assault by Strangulation should be submitted to the jury.

Although the issue was raised by the trial court—rather than defense

counsel—it was ultimately addressed by both the State and defense counsel during

arguments on Defendant’s Motion to Dismiss and treated as a motion to dismiss one

of the charges of Assault by Strangulation. Moreover, the State has not argued the

issue is not preserved for our review. Thus, we will address Defendant’s arguments

as to the sufficiency of the evidence for the charges of Assault by Strangulation on

appeal. Cf. Golder, 374 N.C. at 246, 839 S.E.2d at 788 (“[U]nder Rule 10(a)(3) and

our case law, defendant’s simple act of moving to dismiss at the proper time preserved

all issues related to the sufficiency of the evidence for appellate review.”).

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“This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).

“Upon [a] defendant’s motion for dismissal, the question for the Court is whether

there is substantial evidence (1) of each essential element of the offense charged, or

of a lesser offense included therein, and (2) of defendant’s being the perpetrator of

such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373,

378, 526 S.E.2d 451, 455 (2000) (citation omitted). “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). “If the

evidence is sufficient only to raise a suspicion or conjecture as to either the

commission of the offense or the identity of the defendant as the perpetrator of it, the

motion [to dismiss] should be allowed.” Fritsch, 351 N.C. at 378, 526 S.E.2d at 455

(citation omitted).

“In making its determination, the trial court must consider all evidence

admitted, whether competent or incompetent, in the light most favorable to the State,

giving the State the benefit of every reasonable inference and resolving any

contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223

(1994) (citation omitted). However, “[w]hether the State has offered such substantial

evidence is a question of law for the trial court.” State v. McKinney, 288 N.C. 113,

119, 215 S.E.2d 578, 583 (1975) (citations omitted).

“[A]ny person who assaults another person and inflicts physical injury by

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strangulation is guilty of” assault by strangulation. N.C. Gen. Stat. § 14-32.4(b)

(2023). Thus, one of the offense’s essential elements is an assault. Id. Our Supreme

Court has explained, in cases of assault, not every overt act will count as a separate

offense; rather, this Court “must look beyond the number of physical contacts with

the victim to determine whether more than one assault has occurred such that the

State can appropriately charge a defendant with multiple assaults.” State v. Dew,

379 N.C. 64, 70-71, 864 S.E.2d 268, 274 (2021). In Dew, our Supreme Court held “the

State may charge a defendant with multiple counts of assault only when there is

substantial evidence that a distinct interruption occurred between assaults.” Id. at

72, 864 S.E.2d at 275. A distinct interruption “may take the form of an intervening

event, a lapse of time in which a reasonable person could calm down, an interruption

in the momentum of the attack, a change in location, or some other clear break

delineating the end of one assault and the beginning of another.” Id.

The victim in Dew described a “continuous, nonstop beating” where the

defendant “hit her ‘over and over,’ ” which took place in a trailer home while they

were away visiting family. Id. at 65, 864 S.E.2d at 270. The victim testified, after

that assault, she cleaned up the trailer, packed their bags, and got in a car with the

defendant to drive home. Id. at 66, 864 S.E.2d at 271. The defendant beat the victim

again during the “entire car ride” home. Id. The defendant was charged with five

discrete assault charges and convicted of three. Id. at 69, 864 S.E.2d at 273. On

appeal, the defendant argued there was insufficient evidence to support all but one

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charge of assault. Id. at 68, 864 S.E.2d at 272. Our Supreme Court held there was

sufficient evidence to support two of the assault charges—one assault in the trailer

and one assault in the car. Id. at 73-743, 864 S.E.2d at 276. The Court explained:

“The process of cleaning up and packing up was an intervening event interrupting

the momentum of the attack. In addition, the beating in the trailer was distinct in

time and location from the beating in the car.” Id. at 74. In concluding there was

insufficient evidence to support the third assault charge, which stemmed from the

attack in the trailer, the Court noted “different injuries or different methods of attack

standing alone are insufficient evidence of a distinct interruption” and “all of the

evidence” including the victim’s testimony, “indicated that it was an ongoing,

continuous attack.” Id.

The Supreme Court revisited this principle in State v. Robinson, 381 N.C. 207,

872 S.E.2d 28 (2022). In concluding there was insufficient evidence of a distinct

interruption to support multiple charges of assault, the Court observed the evidence

presented “a confined and continuous attack in which defendant choked and punched

[the victim] in rapid succession and without pause or interruption.” Id. at 219, 872

S.E.2d at 37. However, the Court acknowledged “one can imagine a distinct

interruption being described here with additional facts.” Id. (emphasis in original).

“For instance, if the facts indicated that the attack began in the bathroom but then

moved to the bedroom, such a change in location may constitute a distinct

interruption.” Id. Likewise, evidence of a “discernable sequence of events” could

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show a distinct interruption in an attack. Id.

Here, the evidence “as it was presented” provides sufficient evidence from

which the jury could have found a distinct interruption. See id. Unlike in Dew and

Robinson, K.S. testified to a discernable sequence of events, rather than a “confined

and continuous attack[.]” See id. At trial, K.S. testified Defendant first choked her

from behind with his hands. She then described fighting Defendant, turning her body

to face towards him, moving across the kitchen “from the stove” to “in front of the

refrigerator.” K.S. explained Defendant then hit her multiple times with the gun

before she fell to the floor; next, she was able to throw the gun across the room, and

Defendant strangled her again, now using his arm around her throat. This testimony

tends to show not only a discernable sequence of events, but also evidence of a change

in location, from the across the kitchen and from standing to lying on the floor—in

addition to the different methods of attack, i.e., Defendant’s use of his hands to

strangle K.S. versus his arm.

Thus, the State’s evidence was more than “different injuries or different

methods of attack standing alone[.]” Dew, 379 N.C. at 74, 864 S.E.2d at 276.

Therefore, viewed in the light most favorable to the State, there was sufficient

evidence from which the jury could find a distinct interruption between Defendant’s

strangulation of K.S. with his hands and his strangulation of K.S. with his arm.

Consequently, the trial court properly denied Defendant’s Motion to Dismiss.

III. Physical Injuries

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Defendant contends the trial court plainly erred by “failing to distinguish the

injuries caused” by each charge of Assault by Strangulation. Specifically, Defendant

argues neither the indictments, jury instructions, nor jury verdict sheets “specified

what injury was associated with each of” the two charges of Assault by Strangulation.

At trial, Defendant did not object to the trial court’s jury instructions. Thus,

he is limited to arguing plain error. N.C.R. App. P. 10(a)(4) (2024) (“In criminal cases,

an issue that was not preserved by objection noted at trial . . . may be made the basis

of an issue presented on appeal when the judicial action questioned is specifically and

distinctly contended to amount to plain error.”); see also State v. Bowman, 292 N.C.

App. 290, 898 S.E.2d 27 (2024) (reviewing for plain error).

“For error to constitute plain error, a defendant must demonstrate that a

fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723

S.E.2d 326, 224 (2012) (citation omitted). Further, “[t]o show that an error was

fundamental, a defendant must establish prejudice—that, after examination of the

entire record, the error ‘had a probable impact on the jury’s findings that the

defendant was guilty.’ ” Id. (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983) (citation omitted)). In other words, plain error requires a defendant

to meet a three-factor test:

First, the defendant must show that a fundamental error occurred at

trial. Second, the defendant must show that the error had a probable

impact on the outcome, meaning that absent the error, the jury probably

would have returned a different verdict. Finally, the defendant must

show that the error is an exceptional case that warrants plain error

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review, typically by showing that the error seriously affects the fairness,

integrity or public reputation of judicial proceedings.

State v. Reber, 386 N.C. 153, 158, 900 S.E.2d 781, 786 (2024) (citations and quotation

marks omitted).

In addition to an assault, Assault by Strangulation requires the infliction of a

“physical injury.” See N.C. Gen. Stat. § 14-32.4(b) (2023). Defendant argues because

“none of the injuries were tied specifically to either strangulation,” his “right to a

unanimous verdict was jeopardized[.]” In so arguing, Defendant relies on Bowman

and State v. Bates, 172 N.C. App. 27, 616 S.E.2d 280 (2005).

It is worth noting this Court’s decision in Bates, cited by Defendant, was

remanded by our Supreme Court for reconsideration in light of State v. Lawrence, 360

N.C. 368, 627 S.E.2d 609 (2006). See State v. Bates, 360 N.C. 537, 634 S.E.2d 218

(2006). On remand—contrary to its original decision—this Court held the defendant’s

right to a unanimous verdict was not violated. See State v. Bates, 179 N.C. App. 628,

634, 634 S.E.2d 919, 923 (2006), disc. rev. denied, 361 N.C. 696, 653 S.E.2d 2 (2007).

In so holding, the Court considered four factors: “(1) the evidence; (2) the indictments;

(3) the jury charge; and (4) the verdict sheets.” Id. at 633, 634 S.E.2d at 922.

Concerning the evidence and indictments, we looked to determine

whether “it is possible” to match guilty verdicts with specific

incidents. Concerning the jury instructions, we looked to whether

the “instructions were adequate to ensure that the jury

understood that it must agree unanimously as to each verdict on

each charge.” And concerning the verdict sheets, we looked to

whether “the presentation of the charges on the verdict sheets

was adequate for the jury to distinguish the charges based on the

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evidence presented at trial.”

Bowman, 292 N.C. App. at 294, 898 S.E.2d at 31 (internal citations omitted) (quoting

Bates, 179 N.C. App. at 633-34, 634 S.E.2d at 922-23).

As to the evidence and indictments, the Court observed the defendant was

charged with eleven counts of first-degree sexual offense, but evidence was presented

of “only six to ten incidents.” Bates, 179 N.C. App. at 633, 634 S.E.2d at 922 (noting

the Courts in Lawrence and State v. Wiggins, 161 N.C. App. 583, 589 S.E.2d 402

(2003), disc. rev. denied, 358 N.C. 241, 594 S.E.2d 34 (2004) “found no unanimity

problem” where the number of counts equaled the number of incidents presented as

evidence). Nonetheless, it was not “impossible to match the jury verdict to the

evidence.” Id. As to the jury instructions, the trial court instructed the jury

separately as to each count and instructed the jurors they must reach a unanimous

verdict. Id. Lastly, as to the verdict sheets, although the case numbers were not

provided on the sheets, each charge was listed separately with a notation of the felony

charged, had “date ranges for the different counts to differentiate the charges for the

jury[,]” and some of the counts had descriptors next to the charges, “reducing the risk

that the jurors considered different incidents in reaching their verdict and increasing

the likelihood of unanimity.” Id. at 634, 634 S.E.2d at 922-23. Thus, the Court

concluded “it [was] possible to match the jury’s verdict of guilty with specific incidents

presented in evidence and in the trial court’s instructions.” Id. at 634, 634 S.E.2d at

923.

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More recently, in Bowman, this Court considered these factors in concluding

the trial court plainly erred in instructing the jury only once where the defendant was

charged with two counts of first-degree sexual offense. 292 N.C. App. at 294, 898

S.E.2d at 31. While the trial court “advised the jury that its verdict must be

unanimous as to each charge,” the Court was particularly concerned the verdict sheet

“did not specify which sexual act was to be considered for each charge.” Id. Thus, it

was “impossible to know if the jury convicted Defendant of the particular offense[s]

charged in the warrant or bill of indictment.” Id. at 295, 898 S.E.2d at 32 (emphasis

and alteration in original) (citation and quotation marks omitted). Consequently, the

trial court’s failure to “differentiate counts by the type of alleged sexual act”

jeopardized the defendant’s right to a unanimous verdict. Id.

Here, as in Bates, the number of counts equals the number of incidents

presented in evidence. Likewise, there were two indictments for Assault by

Strangulation. See Bates, 179 N.C. App. at 633, 634 S.E.2d at 922 (“Where the

number of incidents equal the number of indictments, the risk of a non-unanimous

verdict is substantially lower.”). The trial court instructed the jury twice—once for

each charge of Assault by Strangulation. And like in Bates, the trial court instructed

the jurors they could not reach a verdict by majority vote. Lastly, the verdict sheets

presented each charge separately and identified the felony charged by name and case

number. Unlike in Bowman, the sheets further differentiated each offense by

including the words “alleged by hands” or “alleged by arm” in bold font.

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Moreover, the State published to the jury a series of photographs taken of

K.S.’s injuries. See State v. Little, 188 N.C. App. 152, 157, 654 S.E.2d 760, 764 (2008)

(photographs showing bruises on victim’s neck were sufficient evidence of physical

injury for assault by strangulation). K.S. identified swelling, bruising, and marks on

her throat that were not there prior to Defendant’s assault. She also used her hands

to illustrate to the jury where Defendant had placed his hands on her neck. Doctor

Jan Feltowicz, who treated K.S. while she was at the hospital, testified K.S. had

“abrasions” on her neck and “spasm in the upper neck, which is consistent with . . .

being assaulted and strangled.” Thus, we cannot agree with Defendant that “there

was ambiguity in what evidence the jury should consider regarding the physical

injury caused [by] each instance of alleged strangulation[.]” Therefore, the trial court

did not err by not distinguishing the physical injuries for the jury.

IV. Closing Arguments

Defendant contends the prosecutor’s remarks regarding alcoholics in her

closing argument constituted gross impropriety, making it an error for the trial court

to fail to intervene ex mero motu. Because defense counsel did not object to the

prosecutor’s statements at trial, our review is conducted under a heightened

standard:

The standard of review for assessing alleged improper closing

arguments that fail to provoke timely objection from opposing

counsel is whether the remarks were so grossly improper that the

trial court committed reversible error by failing to intervene ex

mero motu. In other words, the reviewing court must determine

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STATE V. TADLOCK

Opinion of the Court

whether the argument in question strayed far enough from the

parameters of propriety that the trial court, in order to protect the

rights of the parties and the sanctity of the proceedings, should

have intervened on its own accord and: (1) precluded other similar

remarks from the offending attorney; and/or (2) instructed the

jury to disregard the improper comments already made.

State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (citation omitted). In

conducting this review, we must analyze “(1) whether the argument was improper;

and, if so, (2) whether the argument was so grossly improper as to impede the

defendant’s right to a fair trial.” State v. Huey, 370 N.C. 174, 179, 804 S.E.2d 464,

469 (2017).

“Grossly improper” is an “exceedingly high bar.” Reber, 386 N.C. at 163, 900

S.E.2d at 789. “[I]t is not enough that the prosecutors’ remarks were undesirable or

even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct.

2464, 2471, 91 L. Ed. 2d 144, 157 (1986) (citation and quotation marks omitted). “In

order to determine whether the prosecutor’s remarks are grossly improper, the

remarks must be viewed in context and in light of the overall factual circumstances

to which they refer.” State v. Alston, 341 N.C. 198, 239, 461 S.E.2d 687, 709 (1995)

(citation omitted).

Further, even when an argument is deemed so improper, the defendant has

the burden of demonstrating prejudice. See Huey, 370 N.C. at 186, 804 S.E.2d at 474.

Additionally, when the Supreme Court of North Carolina “has found the existence of

overwhelming evidence against a defendant, [it has] not found statements that are

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STATE V. TADLOCK

Opinion of the Court

improper to amount to prejudice and reversible error.” Id. at 181, 804 S.E.2d at 470.

“During a closing argument to the jury an attorney may not become abusive,

inject his personal experiences, express his personal belief as to the truth or falsity of

the evidence or as to the guilt or innocence of the defendant, or make arguments on

the basis of matters outside the record except for matters concerning which the court

may take judicial notice.” N.C. Gen. Stat. § 15A-1230(a) (2023). Here, the prosecutor

made several statements about alcoholism in her closing argument, including that

alcoholics can “still function” and “know right from wrong” with a high blood alcohol

level. Defendant argues the prosecutor, in making these statements, impermissibly

argued facts not in evidence and inserted her unsupported opinion about how alcohol

affected—or did not affect—Defendant’s behavior. Presuming, without deciding, the

prosecutor’s statements and argument thereon was improper, Defendant cannot

show the argument was so grossly improper, in light of the full context and the

evidence presented against Defendant, that his “right to a fair trial was prejudiced

by the trial court’s failure to intervene.” Huey, 370 N.C. at 180, 804 S.E.2d at 469-70

(citing Jones, 355 N.C. at 133, 558 S.E.2d at 107).

In State v. Cole, 343 N.C. 399, 471 S.E.2d 362 (1996), the defendant was

convicted of first-degree murder and involuntary manslaughter. Testimony given at

trial indicated the defendant had been drinking at the time of the killings. Id. at 419,

471 S.E.2d at 372. However, the defendant testified he did not know how much he

had to drink on the night in question and no evidence was admitted as to his blood

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STATE V. TADLOCK

Opinion of the Court

alcohol level. Id. at 418-19, 471 S.E.2d at 371-72. During closing arguments, the

prosecutor made speculative statements about the defendant’s level of intoxication:

Their last straw is this alcohol thing. That’s it for them. They

have conceded and admitted everything else in the face of

overwhelming evidence. That’s where they are. That’s all they’ve

got left. Don’t let them fool you. Had he been drinking? Clearly

from the testimony he had. Clearly had. Moderate odor of

alcohol, officer said, strong odor of alcohol. Shouldn’t he have

been arrested for driving while impaired? Maybe. He’d blown an

eight or nine? Maybe. He consumed some alcohol. The only way

we know that is we’ve heard people talk about odors and we’ve

heard him say how much he consumed.

Id. at 418, 471 S.E.2d at 371. Our Supreme Court agreed with the defendant the

argument was improper because it was speculative, but nonetheless held it was “not

so grossly improper that the trial court abused its discretion by not intervening ex

mero motu.” Id. at 419, 471 S.E.2d at 372.

Here, as in Cole, the prosecutor’s statements were, at most, inappropriately

speculative. Moreover, for the reasons explained regarding Defendant’s request for

a voluntary intoxication instruction, supra, there was not substantial evidence

Defendant could not control himself or was so intoxicated he could not form the

specific intent required to convict him. Indeed, the prosecutor’s statements, viewed

in full context, were used to highlight a lack of “typos” in text messages Defendant

sent after the incident in question—rather than to indicate Defendant was a

functioning alcoholic. Thus, we cannot agree the prosecutor’s comments were

prejudicial. Therefore, Defendant has not established the State’s closing argument

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Opinion of the Court

was so grossly improper the trial court was required to intervene ex mero motu.

Consequently, the trial court did not plainly err by not intervening in the State’s

closing argument.

V. Sentencing

Lastly, Defendant argues the trial court erred by imposing a $25,000 fine on

him at sentencing. We review sentencing decisions for abuse of discretion. State v.

Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962) (“A judgment will not be

disturbed because of sentencing procedures unless there is a showing of abuse of

discretion, procedural conduct prejudicial to defendant, circumstances which

manifest inherent unfairness and injustice, or conduct which offends the public sense

of fair play.”). To show an abuse of discretion, the defendant “must demonstrate that

the trial court’s action was so arbitrary that it could not have been the result of a

reasoned decision.” State v. Cannon, 341 N.C. 79, 87, 459 S.E.2d 238, 243 (1995)

(citation and quotation marks omitted).

Under N.C. Gen. Stat. § 15A-1361, “[a] person who has been convicted of a

criminal offense may be ordered to pay a fine as provided by law.” As to felony

sentencing, “the amount of the fine is in the discretion of the court.” Id. § 15A-

1340.17(b) (2023). “In exercising its discretion, the trial court must take into account

the nature of the crime, the level of the offense, and the aggravating and mitigating

factors, just as it would in setting the length of imprisonment for a defendant.” State

v. Sanford Video & News, Inc., 146 N.C. App. 554, 557, 553 S.E.2d 217, 218 (2001),

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Opinion of the Court

disc. rev. denied, 355 N.C. 221, 560 S.E.2d 359 (2002).

Defendant argues he has no ability to pay the fine and will likely never be able

to pay the fine. He argues the trial court did not take his financial situation into

consideration when it imposed the fine, as required by statute. Defendant cites State

v. Mucci, 163 N.C. App. 615, 594 S.E.2d 411 (2004) in support of his argument. There,

the Court remanded the case for a new sentencing hearing in part because the trial

court did not consider the statutory factors outlined in N.C. Gen. Stat. § 15A-1340.36.

Id. at 627-28, 594 S.E.2d at 419-20. Section 15A-1340.36, however, is concerned with

payment of restitution. Here, by contrast, Defendant was ordered to pay a fine—and

the statutory obligations of Section 15A-1340.36 do not apply to the trial court’s

assessment of a fine. See N.C. Gen. Stat. § 15A-1340.36 (2023).

Defendant also argues the trial court’s assessment of the fine was

unreasonable under N.C. Gen. Stat. § 15A-1362(a), which provides: “In determining

the method of payment of a fine, the court should consider the burden that payment

will impose in view of the financial resources of the defendant.” This argument was

expressly rejected by this Court in State v. Zubiena:

We are also unpersuaded by Defendant’s argument that the trial

court erred by failing to consider her resources when it imposed

the fine. The statute Defendant cites for this proposition, N.C.

Gen. Stat. § 15A-1362, states that “[i]n determining the method

of payment of a fine, the court should consider the burden that

payment will impose in view of the financial resources of the

defendant.” N.C. Gen. Stat. § 15A-1362(a) (2015) (emphasis

added). As its plain language indicates, this statute relates to the

method of payment of the fine rather than its amount.

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Opinion of the Court

251 N.C. App. 477, 489, 796 S.E.2d 40, 49 (2016). It is the same here. We are unable

to identify any basis for determining the trial court’s imposition of the $25,000 fine

against Defendant constituted an abuse of discretion or was otherwise unlawful—

particularly in light of the nature of the crimes of which Defendant was convicted.

See Sanford Video & News, Inc., 146 N.C. App. at 557, 553 S.E.2d at 218. Thus,

Defendant has not shown the trial court abused its discretion in assessing a $25,000

fine against him. Therefore, the trial court did not err in ordering Defendant to pay

a $25,000 fine.

Conclusion

Accordingly, for the foregoing reasons, we conclude there was no error at trial

and affirm the Judgments of the trial court.

NO ERROR.

Judge GORE concurs.

Judge FREEMAN concurs in part and dissents in part by separate opinion.

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No. COA24-459 – State v. Tadlock

FREEMAN, Judge, concurring in part and dissenting in part.

I concur in full with the majority opinion with the sole exception of its

conclusion that there was substantial evidence of two separate assaults to survive

defendant’s motion to dismiss one of the two assault by strangulation charges.

This case requires us to determine whether the trial court properly determined

there was substantial evidence of a distinct interruption in the overall assault to

support two separate assault by strangulation charges. Prior to a recent decision

from our Supreme Court in State v. Dew, 379 N.C. 64 (2021), this Court issued

conflicting opinions on how to determine whether a distinct interruption occurred.

Under one analytical framework, this Court looked for “evidence of a clear and

significant break or demarcation within the assaultive episode.” State v. Robinson,

381 N.C. 207, 217 (2022) (citing State v. McPhaul, 256 N.C. App. 303, 317–18 (2017)).

Under the other framework, however, this Court used the factors set out in State v.

Rambert, 341 N.C. 173 (1995), to determine whether (1) the defendant employed a

separate thought process before each act, (2) each act was distinct in time, and (3)

each act resulted in a discrete, identifiable injury. E.g., State v. Dew, 270 N.C. App.

458, 462–63 (2020).

Here, defendant choked the victim with his hands until she broke free.

Subsequently, the victim “went from the stove across the kitchen,” ending up by the

refrigerator. Defendant then hit her on the head with a gun, causing her to drop to

the floor, where defendant continued attacking the victim. Defendant choked her

STATE V. TADLOCK

FREEMAN, J., concurring in part and dissenting in part

again with one hand while he pressed the gun to her head with the other. The victim

then grabbed the gun and tossed it away. Defendant then choked her for a third time:

he used his bodyweight to press his arm into her throat until she became unconscious.

When she regained consciousness, defendant “helped [her] off the floor, and he

walked [her] over to the chair at his computer desk and sat [her] down.”

The State argues that there was a distinct interruption to support separate

assault by strangulation charges because there was enough time for defendant for

“form separate thought processes. There was a break in time, and a separate assault

with the firearm separating” the different strangulations. Indeed, under the Rambert

factors, this is enough to support a distinct interruption. Defendant first decided to

strangle the victim; then he decided to hit the victim over the head with the gun after

she broke free from the first chokehold; and once the gun was out of his control, he

decided to choke the victim again with his arm.

However, our Supreme Court did away with the Rambert framework for

determining whether there was a distinct interruption between assaults in State v.

Dew. There, the Court held that “the State may charge a defendant with multiple

counts of assault only when there is substantial evidence that a distinct interruption

occurred between assaults.” 379 N.C. at 72. The Court elaborated that appropriate

factors to consider are “an intervening event, a lapse of time in which a reasonable

person could calm down, an interruption in the momentum of the attack, a change in

location, or some other clear break delineating the end of one assault and the

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STATE V. TADLOCK

FREEMAN, J., concurring in part and dissenting in part

beginning of another.” Id. Additionally, “different injuries or different methods of

attack standing alone are insufficient evidence of a distinct interruption.” Id. at 74.

This rule was carried forward in a more recent Supreme Court case, where the

Court emphasized that when the facts show “a confined and continuous attack” of

hitting and choking, there must be a “clear break delineating the end of one assault

and the beginning of another.” Robinson, 381 N.C. at 219.

In Dew, for example, there was single assault when the defendant hit the

victim in a “continuous, non-stop beating for at least two hours” at their shared

trailer, where the defendant “hit her upside the head and ear, on each side, kicked

her in the chest, hit her nose and her ear puncher her in the nose, headbutted her

twice, and strangled her until vomiting.” 379 N.C. at 65, 73. The victim then cleaned

up their trailer and put luggage in their car, while the defendant put his daughter in

car seat in the backseat of the car. Id. at 73–74. Once they were in the car, the

beating began again for another two hours. Id. at 74. The Court held that this was

“substantial evidence of a distinct interruption between the occurrences in the trailer

and those in the car.” Id. However, it held that the assault in the trailer was one

continuous assault, and the assault in the car was a second continuous assault. Id.

In Robinson, the defendant assaulted the victim while holding her captive in

their shared home for three days. 381 N.C. at 219. However, the Court concluded

that this was one continuous assault with no clear break in the violence. Id. The

defendant “grabbed the victim around the neck, punched her several times in the face

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STATE V. TADLOCK

FREEMAN, J., concurring in part and dissenting in part

and chest, and strangled her while holding her down on a bed.” Id. at 208. Had there

been something like a change in location, or multiple attacks over the course of the

three-day captivity, there would have been a distinct interruption to support multiple

assault convictions. Id. at 219. But because no such evidence existed, the Court held

that this was one continuous assault. Id.

Since Dew and Robinson, this Court has held there was substantial evidence

of a distinct interruption to support multiple assault charges where there was a five-

hour long break between the assaults and the assaults occurred in different parts of

the house. State v. Martin, 292 N.C. App. 505, 508–09 (2024). In Martin, the

defendant choked the victim “at least twice” in a single assaultive episode where “he

got on top of her, wrapped his hand around her neck, and choked her.” Id. at 508.

The victim tried to fight back, and subsequently the defendant choked her until she

became unconscious. Id. at 509. However, the defendant was only charged with a

single count of assault by strangulation. Id. at 507.

In another case, we held there was substantial evidence of a distinct

interruption where the defendant choked the victim, left the room and attacked

another person, then quickly returned to choke the first victim again. State v. Tucker,

291 N.C. App. 379, 389–90 (2023).

There is no such interruption in the present case. The three strangulations

happened in short succession, in the same room, and while defendant was exclusively

focused on attacking the victim. Though defendant used different methods of attack

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FREEMAN, J., concurring in part and dissenting in part

and had time to form a separate thought process before choking the victim again,

there is no clear break in the action to definitively show where one assault ended and

the other began. Even in the light most favorable to the State, there is not substantial

evidence of a distinct interruption to support two separate assault by strangulation

charges.

I agree with the majority that the victim’s testimony showed a discernable

sequence of events; however, that is not the test. Cases like Dew and Martin

illustrate that there can be a discernable sequence of events—and even multiple

strangulations—within a single assault. And so too here. While there is evidence of

defendant’s distinct actions within the assault, the only apparent distinct

interruption occurred when the victim fell unconscious after defendant choked her

for the third time. Therefore, I would hold that the trial court erred in denying

defendant’s motion to dismiss one of the two assault by strangulation charges.

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