State v. Vebber

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance with

the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-137

Filed 17 December 2025

Pitt County, No. 20CR055390-730

STATE OF NORTH CAROLINA

v.

KEVIN PAUL VEBBER, Defendant.

Appeal by defendant from judgment entered 1 November 2023 by Judge

William D. Wolfe in Pitt County Superior Court. Heard in the Court of Appeals 14

October 2025.

Stanley F. Hammer, for defendant-appellant.

Attorney General Jeff Jackson, by Special Deputy Attorney General Michael T.

Wood, for the State.

FLOOD, Judge.

Defendant Kevin Paul Vebber appeals from the trial court’s judgment finding

him guilty of first degree murder. On appeal, Defendant argues the trial court: first,

erred by denying Defendant’s request to instruct the jury on voluntary manslaughter

and diminished capacity; second, plainly erred by failing to intervene ex mero motu

during the State’s cross examination of Defendant; and third, erred by overruling

STATE V. VEBBER

Opinion of the Court

Defendant’s objections to video and photographic evidence of the killing. Upon careful

review, we hold the trial court did not err in denying Defendant’s requests for jury

instructions on voluntary manslaughter and diminished capacity, did not plainly err

in refraining from intervening ex mero motu, and did not err in overruling

Defendant’s objections to the State’s presentation of video and photographic evidence

of the killing.

I. Factual and Procedural Background

This appeal arises from an incident that occurred on 20 September 2022, when

Defendant shot and killed his ex-wife Charly Vebber. Defendant and Charly married

in 2003, had a daughter in 2004, and later separated in July 2022. The following

evidence was presented at trial regarding the days before and the day of the incident.

The couple’s daughter, Tori, recalled that a day or two before Defendant killed

Charly, she overheard Defendant talking “[v]ery angrily” on the phone with a friend

about the couple’s separation. She testified that she heard Defendant say he “was

going to shoot mom and everything.” Tori further testified that she believed

Defendant had recently taken her phone when she was sleeping, pretended to be Tori,

and, using Tori’s phone, texted Charly criticisms about her decision to start dating

other men. As Tori was testifying, she explained she did not send these messages;

although they had been deleted from her phone, she had later found them on her

iPad.

Defendant testified that on day of the shooting, he drove Tori to a friend’s

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birthday party. He further testified that during the party, “I racked the gun when I

took my daughter to the birthday party and put it underneath the seat.”

According to Tori, Defendant did not normally carry a gun, but he eventually

left the handgun—a 9mm pistol—in the truck and joined the party. Once the party

ended, Defendant drove Tori to Charly’s house to drop her off. As they were driving

to Charly’s house, Defendant asked Tori if she would text Charly “to see if he could

see his dog, Sugar, in the backyard.” When they arrived at Charly’s house, Tori

walked inside, and Defendant walked around to the back of the house because he

“wasn’t allowed into the house.” Defendant took the handgun with him, concealing it

in his pocket. Charly and Tori came from inside the house out into the backyard,

where “there’s a deck that is just off th[e] back door.” Defendant asked Tori to bring

a case of soda from the truck into the house. After Tori left the backyard, Defendant

and Charly stood on the deck talking.

Defendant testified that Charly “told me that I didn’t need to be involved in

Tori’s life anymore.” Defendant admitted that after Charly said this, “I was in fear of

losing by daughter and I snapped,” and “I grabbed Charl[y] and shot her.” Defendant

moved beside Charly, grabbed her around the neck, pulled the gun out of his pocket,

and attempted to aim the gun at Charly’s head. Charly pushed Defendant’s gun away

several times, but eventually Defendant shot Charly in the head. After she collapsed,

Defendant stepped off the deck, walked around, and shot her in the head two more

times. He then ran to his truck and fled.

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Having witnessed the events, Tori testified that she had come back inside with

the drinks where she “watched them struggle for a moment and then him shoot her.

Go around and shoot her again through the railing of the deck.” She then ran into a

bathroom and called 911.

During Tori’s testimony, the State, for the first time, played a portion of the

security video surveillance from Charly’s backyard storage shed—this video was

admitted into evidence over Defendant’s objection and showed the scene Tori

described witnessing.

Charles Warters, Charly’s father and neighbor, testified:

I walked out my back door and looked over to the left

towards Charl[y]’s house. When I actually looked at him he

was grabbing my baby daughter and had a gun to her head.

I hollered at him, What are you doing? He shot my youngin

in the head. I saw her fall.

....

When I hollered at [Defendant] and he shot. . . , he ran off

the deck around and to the end. And he was looking at me.

And I was looking at him. And he aimed the gun and shot.

Warters immediately went inside to get his gun and then went over to Charly’s house,

although Defendant had fled by the time Warters arrived. During Waters’s

testimony, the State played the rest of the security video, starting from where they

ended during Tori’s testimony through the time law enforcement arrived on the scene.

The State presented testimony from Lieutenant Justin Jones, who was the “on-

call investigator for major crimes” and the lieutenant of firearms training and

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standards the at the time of the shooting. During Lieutenant Jones’ testimony, the

State introduced three enlarged photograph stills from the video, which were

admitted over Defendant’s objections, showing where Defendant was: first, reaching

around Charly and “racking the slide of the firearm”; second, standing beside the

deck; and third, running towards the backyard building. Lieutenant Jones explained

that Defendant, in the first photograph, was racking the gun, meaning “[g]rabbing

the frame of the gun, grabbing the slide, pulling it to the rear[,]” which “either feeds

the round from the magazine into the chamber or if [there is] already a round in the

chamber it would extract and eject that round out.” Lieutenant Jones then explained

that by the third photograph, the Defendant’s gun was “locked to the rear[,]” which

means either there is a “malfunction” or “the magazine’s empty[.]”

The State also introduced testimony by Robert Armstrong, who worked for the

Pitt County Sheriff's office forensics unit at the time of the shooting. He explained

how he located shell casings from the scene. During his testimony, the State—over

Defendant’s objection—again showed a portion of the video “related to the firearms

with the shell casings coming out and where they we[re] located and where the gun

was being fired at the time.”

At trial, Defendant testified that he did not recall shooting Charly a second or

third time and did not remember much about what happened afterward. He testified

that after the shooting: “I know I talked to multiple people but I don’t remember. I

know I remember calling my aunt and I know I did talk to my uncle. I believe, I talked

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to my father but I don’t remember calling.” Defendant further testified that Charly

had been violating their separation agreement, including preventing him from seeing

pictures and videos of Tori on Facebook. He explained that because of the co-

parenting situation with Charly, he was “under a lot of stress”[,] “was losing sleep[,]”

“wasn’t eating regularly[,]” “[h]ad anxiety[,]” and “[h]ad blood pressure problems[.]”

On cross examination of Defendant, the State questioned why he did not tell

the officers he did not remember anything:

Q. When the sheriff’s department got there[,] you didn’t tell

your mom or your brother what you did, did you?

A. I don’t remember really saying anything to my mom or

my brother.

Q. And when the sheriff’s department got there to arrest

you[,] you didn’t say I blacked out. I don’t know what

happened. Why are you arresting me, did you?

A. I don’t recall much when they came, no.

Q. Even after you got medical treatment you didn’t go tell

sheriff deputies. You didn’t tell Lieutenant Jones that we

heard from. I don’t know what happened, did you?

A. No, I didn’t.

Q. You didn’t tell him you had some kind of mental problem

or psychiatric problem and that you didn’t remember or

know the events of that evening, did you?

A. No, I didn’t.

Q. You didn’t actually tell or inform the State of that and

that is by, what they call, reciprocal discovery where you

give us what you’ve got. You didn’t say that until after you

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had all of the video and all of the pictures from us, did you?

A. I’ve told my lawyer since I first start[ed] meeting with

him what happened and what I remembered.

Defense counsel did not object to the State’s line of questioning. The State further

requested to show the video during its cross examination of Defendant, but the trial

court denied its request.

Defendant’s aunt, Nancy Rutledge, testified on behalf of Defendant, claiming

that in the days before the shooting, Defendant was “[v]ery anxious[,]” and she “was

concerned about him[,]” but that “[h]e told [her] he had a support system, that he was

dating a nurse. That he had people he could talk to at work and that he was going to

be okay.”

Defendant’s sister, Carrie Alston, testified that Defendant “never called out of

work[,]” but he had to call out of work “twice in the last two weeks [prior to the

shooting] just because he was having the migraines from just being so stressed out.”

After the close of all evidence, the State again played the video for the jury,

narrating the events.1 The trial court then proceeded to the charging conference, and

Defendant requested the trial court to include instructions on voluntary

manslaughter and diminished capacity, which the trial court denied. During jury

1 Although Defendant did not object at this point, the trial court had previously stated it was

moving Defendant’s objection made when the State requested to use the video during its cross

examination of Defendant to this point, stating: “What I’m doing in response to a defense objection is

altering the method and timing of that because the Court does intend to permit the State to use that

videotape during closing argument.”

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deliberations, the jury informed the trial court it was struggling to reach a unanimous

verdict and requested further instructions on the definition of premeditation. The

trial court gave the jury an Allen charge,2 and the jury again requested to view the

video of the shooting, which the trial court allowed over Defendant’s objection. The

jury ultimately returned a guilty verdict of first degree murder; Defendant timely

appealed.

II. Jurisdiction

This Court has jurisdiction to review this appeal from a final judgment of a

superior court, pursuant to N.C.G.S. §§ 7A-27(b)(1) and 15A-1444(a) (2023).

III. Analysis

On appeal, Defendant argues the trial court (A) erred by denying Defendant’s

request to instruct the jury on voluntary manslaughter and diminished capacity, (B)

plainly erred by failing to intervene ex mero motu during the State’s cross

examination of Defendant, and (C) erred by overruling Defendant’s objections to video

and photographic evidence of the killing. We address each argument, in turn.

A. Jury Instructions

Defendant first argues the trial court erred by denying Defendant’s request to

instruct the jury on (1) voluntary manslaughter and (2) diminished capacity. We

2 “The term ‘Allen charge’ is derived from the case of Allen v. United States, in which the

United States Supreme Court approved the use of jury instructions that encouraged the jury to reach

a verdict, if possible, after the jury requested additional instructions from the trial court.” State v.

Gordon, 278 N.C. App. 119, 122 (2021) (citation omitted).

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disagree.

“[W]here the request for a specific instruction raises a question of law, ‘the trial

court’s decisions regarding jury instructions are reviewed de novo by this Court.’”

State v. Edwards, 239 N.C. App. 391, 393 (2015) (quoting State v. Osorio, 196 N.C.

App. 458, 466 (2009)). Under a de novo review, this Court “considers the matter anew

and freely substitutes its own judgment for that of the lower court.” State v. Harris,

276 N.C. App. 128, 131 (2021) (citation omitted). Where “a defendant requests an

instruction which is supported by the evidence and is a correct statement of the law,

the trial court must give the instruction, at least in substance.” State v. Garner, 340

N.C. 573, 594 (1995) (citations omitted). “When determining whether the evidence is

sufficient to entitle a defendant to jury instructions . . ., courts must consider the

evidence in the light most favorable to the defendant.” State v. Mash, 323 N.C. 339,

348 (1988) (citation modified).

1. Voluntary Manslaughter Jury Instruction

Defendant first argues the trial court erred by denying Defendant’s request to

instruct the jury on voluntary manslaughter. Specifically, Defendant contends

Charly’s statement was adequate provocation such that there was evidence to

instruct the jury on voluntary manslaughter. We disagree.

While first degree murder “is the unlawful killing—with malice, premeditation

and deliberation—of another human being[,]” voluntary manslaughter “is the killing

of another human being without malice and without premeditation and deliberation

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under (1) the influence of some passion or (2) heat of blood produced by adequate

provocation” and “is a lesser included offense of first[]degree murder.” State v.

Simonovich, 202 N.C. App. 49, 53 (2010) (citation modified). “In order to receive an

instruction on voluntary manslaughter, there must be evidence tending to show a

killing was committed in the heat of passion suddenly aroused by adequate

provocation, or in the imperfect exercise of the right of self-defense.” State v. Vincent,

195 N.C. App. 761, 765 (2009) (citation modified). “Provocation which will justify an

instruction on manslaughter ‘must be more than mere words; as language, however

abusive, neither excuses nor mitigates the killing.’” Simonovich, 202 N.C. App. at 54

(quoting State v. Watson, 287 N.C. 147, 154 (1975)).

Defendant relies on State v. Corn, 303 N.C. 293, 297 (1981), for the proposition

that words can constitute sudden provocation for the purposes of voluntary

manslaughter. In Corn, the defendant was charged with first degree murder. Id. at

296. At trial, the defendant testified that he shot the victim in self-defense, and

presented evidence that the defendant had been asleep at home when the intoxicated

victim came to the defendant’s home, “walked over to the couch on which [the]

defendant was lying, grabbed [the] defendant, and began slinging him around and

attempting to hit him.” Id. at 295. “At some point during the altercation, [the victim]

apparently accused [the] defendant of being a homosexual[,]” to which the defendant

responded “you son-of-a-bitch, don’t accuse me of that.” Id. The defendant testified he

then reached under the couch, grabbed the .22 rifle he normally kept there, “shot at

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[the victim’s] leg, and when [the victim] kept moving toward him, [the defendant]

shot him several times in the chest.” Id. The defendant then called the police and

waited for them to arrive. Id. At the close of evidence, the defendant moved to dismiss

the first degree murder charge for insufficient evidence, which the trial court denied,

and the jury subsequently found the defendant guilty. Id. at 296.

On appeal to this Court, we held that the State failed to present substantial

evidence that the defendant killed with premeditation and deliberation and thus

remanded for a new trial. Id. at 298. We explained that “[t]he shooting was a sudden

event, apparently brought on by some provocation on the part of the deceased[,]” and

the uncontroverted evidence showed the victim “entered [the] defendant’s home in a

highly intoxicated state, approached the sofa on which defendant was lying, and

insulted [the] defendant[,]” with the incident lasting “only a few moments.” Id. at

297–98.

Here, unlike the defendant in Corn, who presented evidence of being “grabbed,”

“sl[ung]” around, called a homosexual, and of continuing to be approached even after

shooting the victim in the leg, see id. at 295, Defendant presented no evidence of

physical provocation; instead, Defendant argues he was adequately provoked by

Charly’s statement that he “didn’t need to be involved in Tori’s life anymore.” As this

Court has previously held, mere words, “however abusive, neither excuse[] nor

mitigate[] the killing[.]” Simonovich, 202 N.C. App. at 54. Without more, even

considering the evidence in the light most favorable to Defendant, see Mash, 323 N.C.

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at 348, there was no evidence of adequate provocation to present jury instructions on

voluntary manslaughter, see Vincent, 195 N.C. App. at 765. Accordingly, we affirm

the trial court’s denial of Defendant’s request to instruct the jury on voluntary

manslaughter.

2. Diminished Capacity Jury Instruction

Defendant next argues the trial court erred by denying his request for

instruction on diminished capacity. Specifically, Defendant contends he presented

sufficient evidence indicating he lacked the ability to form specific intent for first

degree murder such that the trial court should have given an instruction on

diminished capacity.

“A defendant is entitled to present evidence that a diminished mental capacity

not amounting to legal insanity negated his ability to form the specific intent to kill

required for a first[]degree murder conviction on the basis of premeditation and

deliberation[.]” State v. Page, 346 N.C. 689, 698 (1997). “An instruction on diminished

capacity is warranted where the evidence of the defendant’s mental condition is

sufficient to raise a reasonable doubt in the mind of a rational trier-of-fact as to

whether the defendant had the ability to form the necessary specific intent[.]” State

v. Garcia, 174 N.C. App. 498, 505 (2005). “The production of evidence that a defendant

suffers from intoxication, substance abuse, emotional stress, or mental illness does

not automatically entitle him or her to an instruction on diminished capacity, absent

some evidence that these conditions impacted the defendant’s ability to form the

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specific intent to kill.” State v. McDowell, 215 N.C. App. 184, 195 (2011). This Court

has explained:

[T]he crucial inquiry that must be undertaken in

connection with a request for a diminished capacity

instruction is not the extent to which the defendant has

offered any evidence of mental impairment; instead, the

crucial issue is whether there is any evidence tending to

show the effect of his condition upon his ability to

premeditate, deliberate, and form a specific intent to kill.

Id. at 196.

Defendant relies on State v. Shank to support his argument that he presented

sufficient evidence to warrant a diminished capacity jury instruction. 322 N.C. 243

(1988). We have previously noted in a similar manner, however, “Shank did not

address the sufficiency of evidence required to warrant such an instruction,” and as

such “it has little bearing on the proper resolution of this case.” McDowell, 215 N.C.

App. at 198. Instead, we find McDowell instructive.

In McDowell, the defendant was convicted of first degree murder after he shot

his friend multiple times while they were staying in a cabin for a week. Id. at 193.

The trial court did not give a diminished capacity instruction. On appeal, the

defendant argued such instruction should have been given where there was evidence

that, at the time of the shooting, the defendant “suffered from various conditions,

including post-traumatic stress syndrome, alcohol dependence, and cognitive

impairment resulting from a head injury, that were sufficient to support a finding

that [the d]efendant might overreact to stress or conclude that deadly force was

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necessary to deal with a threatening situation.” Id. at 194.

At trial, the defendant had presented evidence from two expert witnesses as to

his mental state, and while both expert witnesses’ testimonies “tended to show that

[the d]efendant suffered from post-traumatic stress syndrome, post-concussive

syndrome, alcohol abuse, and some degree of cognitive impairment,” they did “not

explain how these circumstances impaired [the d]efendant’s ability to premeditate,

deliberate, or form a specific intent to kill.” Id. at 197. On appeal, we explained that

nothing in the witnesses’ testimonies “addressed, much less cast doubt on,” the

defendant’s “ability to premeditate, deliberate, or form the specific intent to kill” at

the time of the shooting, even where one of the experts opined that after the initial

shooting, the defendant “entered into a dissociative state causing him to experience

amnesia about the firing of the additional forty or so shots and his subsequent

actions.” Id.

Here, Defendant did not present any expert witnesses as to his mental

capacity. Defendant nonetheless argues his “testimony that he snapped[,]” coupled

“with evidence demonstrating his frustration with his inability to co-parent with

Charly or access family photographs[,] was sufficient to permit a reasonable jury to

conclude that he lacked the cool state [of] mind required to satisfy the specific intent

element of first[]degree murder.” He further argues he presented “evidence that he

was ‘stressed out’ during the weeks prior to 20 September[,]” through the testimonies

of his sister and aunt. Like the defendant’s evidence in McDowell, however,

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Defendant’s evidence fails to address, “much less cast doubt on,” his “ability to

premeditate, deliberate, or form the specific intent to kill” at the time of the shooting.

See id.

Thus, even viewing the evidence in the light most favorable to Defendant, see

Mash, 323 N.C. at 348, Defendant has failed to present evidence to cast doubt on “his

ability to premeditate, deliberate, and form a specific intent to kill[,]” see McDowell,

215 N.C. App. at 196. Accordingly, we affirm the trial court’s denial of Defendant’s

request to instruct the jury on diminished capacity.

B. The State’s Cross Examination

Defendant next argues the trial court plainly erred by failing to intervene ex

mero motu during the State’s cross examination of Defendant. Specifically, Defendant

contends the trial court should have intervened when the prosecutor “improperly

impeached [D]efendant with his post-arrest silence in violation of the Fifth

Amendment of the United States Constitution and Article I, § 23 of the North

Carolina Constitution.” We disagree.

Generally, “a constitutional question which is not raised and passed upon in

the trial court will not ordinarily be considered on appeal[,]” State v. Hunter, 305 N.C.

106, 112 (1982), and thus, “[t]he failure to raise a constitutional issue before the trial

court bars appellate review[,]” State v. Valentine, 357 N.C. 512, 525 (2003) (citation

omitted). In criminal cases, however, unpreserved issues “may be made the basis of

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

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distinctly contended to amount to plain error.” N.C.R. App. P. 10(a)(4). Because

Defendant failed to object to the prosecutor’s cross examination, Defendant is only

entitled to plain error review and may prevail only by showing “that a fundamental

error occurred at trial.” See State v. Oliphant, 228 N.C. App. 692, 696 (2013).

“To 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 finding that the defendant was guilty.” Id. (citation omitted); see

State v. Lawrence, 365 N.C. 506, 507 (2012) (“[T]he rule provides that a criminal

defendant is entitled to a new trial if the defendant demonstrates that the jury

probably would have returned a different verdict had the error not occurred.”

(alteration in original)). Moreover, “the plain error rule may not be applied on a

cumulative basis, but rather a defendant must show that each individual error rises

to the level of plain error.” State v. Dean, 196 N.C. App. 180, 194 (2009).

Generally, a defendant may not be impeached by his post-arrest silence. Doyle

v. Ohio, 426 U.S. 610, 618 (1976) (“[I]t would be fundamentally unfair and a

deprivation of due process to allow the arrested person’s silence to be used to impeach

an explanation subsequently offered at trial.”).

In his brief, Defendant “does not contend that absent the improper cross

examination he would have been acquitted of all charges, but rather that it is ‘almost

certain’ that absent the constitutionally improper cross examination, the jurors would

have found that he did not act with premeditation or deliberation and a specific

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intent” for first degree murder. Here, Defendant argues the State’s cross examination

regarding his post-arrest silence improperly impeached him.

Assuming arguendo that the trial court erred by not intervening ex mero motu,

Defendant has not shown that “the jury probably would have returned a different

verdict had the error not occurred.” Lawrence, 365 N.C. at 507. Even if the jury could

not consider Defendant’s post-arrest silence, the jury heard Tori’s testimony,

including: she heard Defendant say he was “going to shoot mom”; Defendant did not

normally carry a gun; on the day of the shooting, Defendant left the gun in the truck

for a birthday party but brought the gun with him to Charly’s backyard; and she

watched her father shoot her mother, then walk around and shoot her again. The jury

heard from Warters that he saw Defendant shoot Charly, and the jury also heard

Defendant’s own testimony that he left his gun in his truck during the birthday party

but brought it with him to the backyard, and that he shot Charly, but could not

remember much about what happened afterward.

After examining the Record, Defendant has not shown this error, if any,

prejudiced him, where there was overwhelming evidence for the jury to conclude he

acted with premeditation or deliberation and a specific intent. See Oliphant, 228 N.C.

App. at 696. Accordingly, we conclude the trial court did not plainly err in failing to

intervene ex mero motu during the State’s cross examination of Defendant.

C. Video and Photographic Evidence

Defendant lastly argues the trial court erred by overruling Defendant’s

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objections to (1) the photographic evidence of the killing and (2) the presentation of

the video during trial and deliberations. We address each argument, in turn.

1. Photographs

Defendant first argues his constitutional right to a fair trial was violated when

the trial court allowed the State to publish three photograph stills from the video

shown. We disagree.

This Court reviews alleged violations of constitutional rights de novo. State v.

Graham, 200 N.C. App. 204, 214 (2009). “Under a de novo review, th[is C]ourt

considers the matter anew and freely substitutes its own judgment for that of the

lower tribunal.” State v. Harris, 242 N.C. App. 162, 164 (2015) (cleaned up).

Generally, “[a] violation of the defendant’s rights under the Constitution of the United

States is prejudicial unless the appellate court finds that it was harmless beyond a

reasonable doubt.” State v. Hooper, 318 N.C. 680, 682 (1987) (citation omitted).

“‘Harmless beyond a reasonable doubt’ has been interpreted to mean that there is no

reasonable possibility” that the erroneous admission of evidence “might have

contributed to the conviction.” Id. at 682 (citation and internal quotation marks

omitted). Where the evidence in question is “of such insignificant probative value

when compared with the overwhelming competent evidence of guilt that its admission

d[oes] not contribute to [the defendant’s conviction[,]” then the “admission of the

evidence was harmless . . . beyond a reasonable doubt.” Id. at 682 (citation omitted).

“The burden is upon the State to demonstrate, beyond a reasonable doubt, that the

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error was harmless.” N.C.G.S. § 15A-1443(b) (2023).

Our statutes provide that “[a]ll relevant evidence is admissible” at trial unless

the Constitution of the United States, the Constitution of North Carolina, an act of

Congress, an act of the General Assembly, or the Rules of Evidence say otherwise.

N.C.R. Evid. 402. “‘Relevant evidence’ means evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” N.C.R. Evid.

401. A trial court may exclude relevant evidence, however, “if its probative value is

substantially outweighed by the danger of unfair prejudice[.]” N.C.R. Evid. 403. “A

trial court’s decision whether to admit or exclude evidence under Rule 403 is reviewed

for abuse of discretion.” State v. Richardson, 385 N.C. 101, 132–33 (2023) (citation

omitted). “An abuse of discretion results where the court’s ruling is manifestly

unsupported by reason or is so arbitrary that it could not have been the result of a

reasoned decision.” Id. at 133 (citation and internal quotation marks omitted).

“Photographs are allowed to prove the character of the attack made by

defendant upon the deceased, and to illustrate testimony regarding the manner of a

killing in order to prove circumstantially the elements of murder in the first degree.”

Id. at 133 (internal citations and quotation marks omitted). “Photographs of a

homicide victim may be introduced even if they are gory, gruesome, horrible or

revolting, so long as they are used for illustrative purposes and so long as their

excessive or repetitious use is not aimed solely at arousing the passions of the jury.”

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State v. Hennis, 323 N.C. 279, 284 (1988). “But when the use of photographs that

have inflammatory potential is excessive or repetitious, the probative value of such

evidence is eclipsed by its tendency to prejudice the jury[,]” Richardson, 385 N.C. at

133 (citation and internal quotation marks omitted), and “the admission of an

excessive number of photographs depicting substantially the same scene may be

sufficient ground for a new trial when the additional photographs add nothing in the

way of probative value but tend solely to inflame the jurors[,]” Hennis, 323 N.C. at

284 (citation omitted). “The number of photographs alone is an insufficient measure

of their capacity to prejudice and inflame the jury; instead, the court looks to their

probative value and the circumstances of their introduction into evidence.” State v.

Phipps, 331 N.C. 427, 454 (1992). Our Supreme Court has explained,

[t]he test for excess is not formulaic: there is no bright line

indicating at what point the number of crime scene or

autopsy photographs becomes too great. Ultimately,

whether the use of photographic evidence is more probative

than prejudicial and what constitutes an excessive number

of photographs in the light of the illustrative value of each

likewise lies within the discretion of the trial court.

Richardson, 385 N.C. at 133 (citation modified).

Defendant points us to the North Carolina Supreme Court’s decision in Hennis.

323 N.C. at 284. In Hennis, the defendant was charged with first degree murder of

three victims, and at trial, the State published twenty-six photographs of the victims’

autopsies. The Court held this was prejudicial, explaining,

the majority of the twenty-six photographs taken at the

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STATE V. VEBBER

Opinion of the Court

victims’ autopsies here added nothing to the [S]tate’s case

as already delineated in the crime scene slides and their

accompanying testimony. Given this absence of additional

probative value, these photographs—grotesque and

macabre in and of themselves—had potential only for

inflaming the jurors.

Id. at 286.

Defendant argues that, like the autopsy photos in Hennis, the State’s Exhibits

102–104, which were poster-board-sized stills from the video, were inflammatory.

These three enlarged photographs, however, were used to illustrate Lieutenant

Jones’s testimony, showing how Defendant racked and fired the gun in the backyard

when he shot Charly. The State had the burden to prove that Defendant acted with

premeditation or deliberation and a specific intent to kill Charly, such that

illustrating testimony by an officer on how Defendant racked and fired the gun was

relevant and probative. Thus, we conclude the trial court did not abuse its discretion

in allowing these three photographs to be used as illustrating testimony where the

photographs were not used only for inflaming the jurors. See Richardson, 385 N.C. at

133; Hennis, 323 N.C. at 286.

2. Videotape

Defendant next contends his constitutional right to a fair trial was violated

when the trial court allowed the jury to view the video multiple times. Specifically,

Defendant argues “[t]he excessive use of the videotape at trial and its unnecessary

playback during deliberations effectively encouraged the jury to concentrate its focus

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Opinion of the Court

on a few damning seconds of a video to the exclusion of a wealth of evidence” of

Defendant’s “depressed state of mind” and his fear of losing his daughter. We

disagree.

“The basic principles which govern the admissibility of photographs apply to

videotapes[.]” State v. Kandies, 342 N.C. 419, 444 (1996). Thus, videos “may be

introduced even if they are gory, gruesome, horrible or revolting, so long as they are

used for illustrative purposes and so long as their excessive or repetitious use is not

aimed solely at arousing the passions of the jury.” Hennis, 323 N.C. at 284.

Additionally, N.C.G.S. § 15A-1233(a) provides:

If the jury after retiring for deliberation requests a review

of certain testimony or other evidence, the jurors must be

conducted to the courtroom. The judge in his discretion,

after notice to the prosecutor and defendant, may direct

that requested parts of the testimony be read to the jury

and may permit the jury to reexamine in open court the

requested materials admitted into evidence.

N.C.G.S. § 15A-1233(a) (2023).

Here, the video was played three times during trial: once, divided into two

portions, during Tori’s and Warters’s testimonies; once during Officer Armstrong’s

testimony; and once during the State’s closing argument. The jury then viewed the

video once more after it requested to see it during jury deliberations.

The first time the video was played, it was used to illustrate Tori’s and Warter’s

testimonies as to what they witnessed, and then the second time it was played, the

video was used to illustrate Officer Armstrong’s testimony as to when the gun was

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Opinion of the Court

fired and where he located the shell casings. Because these two showings were used

“for illustrative purposes” and were not “aimed solely at arousing the passions of the

jury[,]” we conclude the trial court did not err allowing the video to be shown in those

instances. Hennis, 323 N.C. at 284.

As for the other two viewings—during the State’s closing argument and jury

deliberations—even assuming it was error for the trial court to allow the video to be

played again, the State has produced “overwhelming competent evidence of guilt.”

Hooper, 318 N.C. at 682. The jury heard Tori’s testimony that Defendant said he was

“going to shoot mom”; Defendant did not normally carry a gun, yet on the day of the

shooting, Defendant brought a gun, left it in the truck for the birthday party, but

brought it with him to Charly’s backyard; and she watched her father shoot her

mother, then walk around and shoot her again. The jury also heard Defendant’s own

testimony that he left his gun in his truck during the birthday party but brought it

with him to the backyard, and that he shot Charly. Thus, the admission of the video

did not contribute to Defendant’s conviction and was harmless beyond a reasonable

doubt. Id. at 682.

Accordingly, we conclude the trial court did not err in allowing the jury to view

the three photographs during trial and the jury to watch the videotape.

IV. Conclusion

Upon careful review, we conclude the trial court did not err in denying

Defendant’s requests for jury instructions on voluntary manslaughter and

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Opinion of the Court

diminished capacity, did not plainly err in refraining from intervening ex mero motu,

and did not err in overruling Defendant’s objections to the State’s presentation of

video and photographic evidence of the killing.

NO ERROR.

Chief Judge DILLON and Judge GRIFFIN concur.

Report per Rule 30(e).

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