State v. Lindsay

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-563

Filed 5 March 2024

Gaston County, Nos. 21 CRS 54366, 22 CRS 2164

STATE OF NORTH CAROLINA

v.

NEVIN JAY LINDSAY

Appeal by defendant from judgment entered 20 February 2023 by Judge David

A. Phillips in Superior Court, Gaston County. Heard in the Court of Appeals

7 February 2024.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Amanda

J. Reeder, for the State.

Sean P. Vitrano, for defendant-appellant.

ARROWOOD, Judge.

Nevin Jay Lindsay (“defendant”) appeals from judgment entered upon his

conviction for second degree forcible sexual offense, sexual battery, and assault on a

female. For the following reasons, we affirm the judgment.

I. Background

Defendant waived his right to a jury trial on 5 January 2023, and the case

came on for bench trial on 23 January 2023. The evidence offered at trial tended to

show the following facts:

STATE V. LINDSAY

Opinion of the Court

In April 2021, Zara1 was an eighteen-year-old senior in high school living with

her mother and two younger brothers in an apartment. During the latter part of the

month, defendant—a close friend of Zara’s family—was staying at the apartment

while visiting from New York.

On 26 April, defendant picked Zara up from school and drove her back to the

apartment. At 7:26 p.m., while Zara’s mother was taking a nap in her room,

defendant texted Zara that he was “rolling up in the car” to smoke marijuana with

Zara. Zara responded via multiple texts, stating:

Zara: Okay

Zara: Coming give me sex2

Zara: Sec [laughing emoji]

Defendant and Zara smoked marijuana on the front porch around 8:00 p.m.3 At

8:59 p.m., defendant texted Zara, “Wow ok[,]” and then at 10:28 p.m., he texted her,

“Cum get this[.]”4

Zara’s mother left for work around 9:50 p.m. At approximately 11:00 p.m.,

while Zara was cleaning the kitchen and her brothers were watching television in

1 Zara is a pseudonym used to keep the individual’s name anonymous in the interest of privacy.

2 Zara testified that she meant to type “sec”—i.e., that she was coming to meet defendant in a second—

but the phone auto-corrected to “sex.” Zara immediately corrected the error by sending the message,

“Sec.”

3 Zara testified that defendant also drank alcohol that evening but that she did not.

4 Zara testified that defendant’s 8:59 p.m. text “was in response to [her earlier] sex/sec [text,]” and his

10:28 p.m. text was in reference to the marijuana he was going outside to smoke. Zara did not go

outside to smoke with him on this subsequent occasion.

2

STATE V. LINDSAY

Opinion of the Court

their mother’s room, defendant went into Zara’s bedroom and laid down in her bed.

When Zara went to her bedroom around midnight, she discovered defendant sleeping

in her bed.5 Zara testified that she tried getting defendant up so he could move to the

living room, but “he was just knocked out cold[,] [s]o I just left him there.” Zara placed

blankets on her bedroom floor and went to sleep there.

Zara’s recollection of what happened next was detailed during direct testimony

at trial:

Zara: I remember me getting ready to just doze off.

And I definitely felt like a discomfort feeling,

so I eventually woke up. And when I woke up

I didn’t see anybody on the bed, so it made me

startled where I seen [defendant], like, at the

bottom of me, under my blanket.

The State: I’m going to stop you there just a second, okay,

Zara? When you said you felt something, I

think you used the word uncomfortable ---

Zara: Yes.

The State: --- what did you feel?

Zara: I felt, like, moisture. Like I felt somebody

doing something to my private area.

The State: Did you feel something inside your private

area, like moving around?

Zara: No, ma’am.

The State: Okay. When you say you felt moisture in your

5 Zara testified that when defendant previously stayed with them, he normally slept on the couch in

the living room, and Zara always slept in her bedroom.

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STATE V. LINDSAY

Opinion of the Court

private area, was it in your vaginal area?

Zara: Yes.

The State: Was it between the labia, or the lips of your

vaginal area?

Zara: Yeah.

The State: What were you wearing at the time?

Zara: Leggings.

The State: Where were your leggings at that point, when

you felt that?

Zara: It was, like, under, like, my butt cheeks, like,

my bottom.

The State: Did you have underwear on?

Zara: No. Just because my bottoms felt like – they

fitted me like sweatpants, you know, like

baggy. So, no, I didn’t.

The State: Baggy leggings?

Zara: Yeah.

The State: Were you – when you woke up, and you felt

this on your vaginal area, were you laying on

your stomach or on your side or on your back?

How were you laying?

Zara: On my stomach.

The State: Where was the blanket?

Zara: At that point my blanket was, like, more on

my back.

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STATE V. LINDSAY

Opinion of the Court

The State: You’ve described what you felt. Describe

what you saw. Were you able to, like, look up?

Zara: Yeah, once I turned around.

The State: What do you mean, turned around, like, look

behind you?

Zara: Yes.

The State: What did you see?

Zara: I seen him on all fours.

The State: Who did you see on all fours?

Zara: [Defendant].

The State: What did you do?

Zara: I stood there in shock. And I asked him what

he was doing.

The State: When you say you stood there, were you

actually standing, or how were you

positioned?

Zara: I was still laying on my back. I’m sorry, my

stomach. But, you know, for me turning

around, like, I was just turned (indicating).

The State: Okay. And you said to him, what are you

doing?

Zara: Yes.

The State: What did he say?

Zara: Oh, I’m sorry, I’m sorry, I’m sorry.

The State: What happened next?

5

STATE V. LINDSAY

Opinion of the Court

Zara: I said, you better get the fuck out. I got up. I

ran to the bathroom, I washed myself.

After leaving the bathroom, Zara went straight to her mother’s room and

locked the door.6 At that point, defendant had left Zara’s bedroom and was in the

living room. Zara testified that defendant then came to her mother’s door asking

Zara to come out and talk to him. According to Zara, defendant sounded scared and

was slurring his words. At 2:24 a.m., defendant texted Zara the following messages:

Defendant: You really not coming to talk to me

Defendant: Ok if you feel that way come lock the door

Defendant left the apartment shortly after sending these texts. Zara did not go back

to sleep the rest of the night.

In the morning, Zara spoke with her cousin and told her what happened

between her and defendant. Specifically, Zara’s cousin testified that Zara told her, “I

was sleeping and I just felt really moist, so when I woke up I seen [defendant’s] head

between my legs.” Zara’s cousin further testified that while Zara was on the phone

with her, Zara was “crying, bawling” and “in shock.”

Around 6:15 a.m., Zara’s mother returned home from work. At some point that

day, Zara asked to speak with her mother in Zara’s bedroom. Then, while on the

6 While in her mother’s room, Zara testified that she attempted to contact her older cousin and best

friend, but they did not respond until the following day.

6

STATE V. LINDSAY

Opinion of the Court

phone with her cousin7, Zara explained to her mother what defendant did. Zara’s

mother testified that Zara told her that “she ended up waking up to [defendant]

between her legs while she was on her stomach” and that defendant’s “face was in

between . . . her buttocks, basically.”

Zara’s mother immediately confronted defendant via video call. Zara’s mother

testified that, while on the call, defendant denied putting his “mouth on her” but

admitted to “bit[ing Zara] on her lower back.” Later, defendant sent Zara’s mother a

text message stating, “First how the hell I get her naked while she sleeping? Second

I never licked her I bit her just above lower back she woke, and I told her to take her

bed n I’ll stay on the floor the next thing I know she jumped in the shower.”

Zara’s mother also called the police, and Officer Alexis Snyder (“Officer

Snyder”) from Gastonia Police Department met with Zara and her mother at the

apartment. Officer Snyder spoke with Zara’s mother first. At trial, Officer Snyder

testified8 that Zara’s mother informed her that defendant sexually assaulted Zara;

specifically, Zara’s mother stated that “her daughter told her that this uncle/friend

had used his tongue on her vagina[.]” When interviewing Zara, Officer Snyder

7 Zara testified that she wanted her cousin on the phone with her while talking to her mother because

Zara was afraid of “how her response was just going to be” since defendant “was somebody that we

really, like, took in as family.”

8 The State called Officer Snyder as a witness for the purpose of corroborating the in-court testimony

of Zara and Zara’s mother. Additionally, before Officer Snyder testified, the State sought permission

from the trial court and defense counsel to call Officer Snyder to the stand prior to Zara’s mother

testifying because Officer Snyder was in nursing school at the time and needed to “get back to her

other school duties.” The trial court subsequently permitted it.

7

STATE V. LINDSAY

Opinion of the Court

testified that Zara told her that while “[s]he was sleeping, . . . she awoke to

[defendant] in between her legs, licking her vagina.” Defendant did not object to

either of these statements by Officer Snyder.

While in Zara’s bedroom, Officer Snyder “observe[d] the blankets and the

pillows on the floor[.]” Officer Snyder advised Zara not to get a sexual assault kit

examination because a supervisor had told her that “due to the time frame” and that

Zara had showered, it was not recommended. Officer Snyder also collected Zara’s

leggings as evidence.

Zara and her mother later agreed to recorded interviews with Detective

Heather Houser (“Detective Houser”) of the Gastonia Police Department. Without

objection, portions of the 29 April 2021 interviews were admitted as evidence at trial.

During Zara’s interview, Zara told Detective Houser that “[defendant] definitely

didn’t penetrate me. I definitely felt moisture, which was definitely his mouth area,

so he was using his tongue. . . . All I felt really were like licks.” During the interview

with Zara’s mother, Zara’s mother stated that “[Zara] was sleeping on the

floor . . . and when she was awakened, [defendant] was in between her legs with his

face, his mouth, down on her, licking her vagina.”

Detective Houser tried reaching defendant by phone but never received a call

back. Pursuant to search warrant, Detective Houser collected a buccal DNA swab

8

STATE V. LINDSAY

Opinion of the Court

from defendant on 6 July 2021.9 Detective Houser further testified that Zara’s

leggings were tested for DNA because, according to Zara, she had put them on “after

the incident[.]”10

At the close of the State’s evidence, defendant moved to dismiss the charges

on the basis that the elements had not been met, but the motion was denied. After

declining to testify or present evidence, defendant moved again to dismiss the

charges, and the motion was denied.

During closing arguments, the State, in relevant part, stated:

[Zara] has no reason to lie about this. She loved this man

as her uncle. He was brought into the home. You heard

about the earlier events that day. Absolutely no argument,

no animosity, nothing going on for her to make this up. She

has nothing against him. She loved him. The defendant

wants you to believe, or is pretty much asking you to

believe that she made this up. Why would she make this

up and put herself and her family through all of this? An

entire investigation, talking to not one police officer but

then two more detectives, and then actually having to come

in and testify in a courtroom. She wouldn’t do that unless

she was telling the truth, and she is, and she did.

In a sexual assault case like this, especially when you

are – when it involves a person that is trusted and known

to the victim, you have to look at the credibility of the

victim, and of the witnesses in the case. You have to look

at consistency and corroboration. Your Honor knows that

if you believe this victim in this case then you believe this

case beyond a reasonable doubt. And that’s why

9 When Detective Houser attempted to obtain defendant’s DNA, defendant stated that he was not

going to comply without his attorney present. Detective Houser (and other officers) then used force to

obtain defendant’s saliva sample.

10 At trial, the State did not submit the results of any DNA testing.

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STATE V. LINDSAY

Opinion of the Court

consistency and corroboration are important.

[Zara], on this particular date, back in April of 2021, in the

middle of the night she texted her cousin [ ]. The next

morning is when she finally had the opportunity to speak

to [her cousin]. She told [her] what [defendant] had done

to her. She then told her mother. She talked to Patrol

Officer . . . Snyder. She talked to detectives. And then she

testified under oath. And throughout all of it she was

consistent. She did not embellish, she didn’t change the

facts, because she was telling the truth.

And what did she gain from this? She gained nothing but

embarrassment. She told this courtroom, including the

defendant, had to face him, and other strangers in here,

what she had experienced. She benefited in no way at all

by coming forward in this case. In fact, this was

embarrassing for her. But the defendant still is denying it

and saying this was all made up. You could hear, and you

could see in her testimony how hard this was for her to talk

about. She would stop, she would breathe, at one point she

had to blow her nose. Visibly upset.

You heard from . . . her cousin, her big sis, and her mother,

that as [Zara] told them what the defendant did to her she

cried, he was upset. And then, even in the video interview

that you saw of the victim, [Zara], visibly on two separate

occasions got upset. [Zara] is not an Academy Award-

winning actress, she’s a victim, and she was traumatized,

and she has no reason to lie about this.

Don’t allow that defendant to benefit from assaulting her

at a time when there were no witnesses around, when he

had the opportunity to be alone with her. The defense is

almost saying, like, this is some big conspiracy theory.

Like, she decided to wake up in the middle of the night and

say, hey, I’m going to claim that he did this to me, text [her

cousin], lock herself in a bathroom, go to the bedroom, tell

two relatives the next day, go to police. For what? It’s not

just something she thought up to do. She’s telling the

truth.

10

STATE V. LINDSAY

Opinion of the Court

The judge found defendant guilty of second-degree forcible sexual offense,

assault on a female, and sexual battery. The court consolidated the three offenses

into the second-degree forcible sexual offense and sentenced defendant to a minimum

of 100 month and a maximum of 180 months in the North Carolina Department of

Adult Corrections. The court also ordered that, upon his release from imprisonment,

defendant register as a sex offender for thirty years. Defendant gave notice of appeal

in open court.

II. Discussion

On appeal, defendant contends that the trial court committed plain error when

it admitted Officer Snyder’s testimony regarding out-of-court statements as well as

statements from the recorded interview. Defendant also contends that the trial court

erred by failing to intervene ex mero motu during the State’s closing argument. We

take each argument in turn.

A. Out of Court Statements

Defendant contends that the out-of-court statements at issue are inadmissible

hearsay evidence because (1) none of the statements corroborated in-court testimony

and (2) the hearsay exception for excited utterances was inapplicable to the recorded

statements. We disagree.

When an issue is not preserved by objection at trial, appellate courts review

the issue for plain error. State v. Caballero, 383 N.C. 464, 473 (2022) (citing N.C.R.

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STATE V. LINDSAY

Opinion of the Court

App. P. 10(a)(4) (2023)). Plain error concerns error that “seriously affects the fairness,

integrity, or public reputation of judicial proceedings” and should “be applied

cautiously and only in the exceptional case.” State v. Odom, 307 N.C. 655, 660 (1983)

(cleaned up). Proving plain error requires that the defendant show that the error at

trial was fundamental—i.e., the error had a probable impact on the jury’s finding that

the defendant was guilty. State v. Lawrence, 365 N.C. 506, 518 (2012) (citation

omitted).

However, “in a bench trial, we presume the trial court ignored any inadmissible

evidence unless the defendant can show otherwise.” State v. Jones, 260 N.C. App.

104, 109 (2018) (citation omitted). In other words, we give the trial court the benefit

of the doubt that it adhered to basic rules and procedure when sitting without a jury.

Id. Therefore, “no prejudice exists simply by virtue of the fact that such evidence was

made known to [the trial judge] absent a showing by the defendant of facts tending

to rebut this presumption.” State v. Jones, 248 N.C. App. 418, 424 (2016).

“ ‘Corroborative testimony is testimony which tends to strengthen, confirm, or

make more certain the testimony of another witness.’ ” State v. Harrison, 328 N.C.

678, 682 (1991) (quoting State v. Rogers, 299 N.C. 597, 601 (1980)). A prior statement

may be used to corroborate a witness’s in-court testimony even if the witness has not

been impeached. State v. Harris, 253 N.C. App. 322, 332 (2017) (citation omitted);

see also State v. Walters, 357 N.C. 68, 88 (2003) (concluding that both a 911 tape and

the witness’s out-of-court statement to a detective were admissible to corroborate the

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STATE V. LINDSAY

Opinion of the Court

witness’s earlier in-court testimony). Prior statements admitted for corroborative

purposes are not hearsay because they are not offered for the truth of the matter

asserted. State v. Thompson, 250 N.C. App. 158, 163 (2016) (citations omitted).

Consequently, such statements do not implicate the confrontation clause and are not

to be admitted as substantive evidence. Id. (citations omitted).

To be admissible as corroborative evidence, “prior consistent statements

merely must tend to add weight or credibility to the witness’s testimony. Further, it

is well established that such corroborative evidence may contain new or additional

facts when it tends to strengthen and add credibility to the testimony which it

corroborates.” State v. Farmer, 333 N.C. 172, 192 (1993) (citations omitted); see also

Thompson, 250 N.C. App. at 165 (“[T]he mere fact that a corroborative statement

contains additional facts not included in the statement that is being corroborated does

not render the corroborative statement inadmissible[.]”); State v. Barrett, 228 N.C.

App. 655, 664 (2013) (concluding the prior statements were admissible as

corroborative evidence despite having minor inconsistencies with the trial testimony);

State v. Martin, 309 N.C. 465, 476 (1983) (“If the previous statements are generally

consistent with the witness' testimony, slight variations will not render the

statements inadmissible, but such variations only affect the credibility of the

statement.” (citing State v. Britt, 291 N.C. 528 (1977)).

Here, defendant contends that neither Zara nor her mother testified that

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STATE V. LINDSAY

Opinion of the Court

defendant performed cunnilingus11 on Zara. Additionally, because the out-of-court

statements were that defendant “licked [Zara’s] vagina”—i.e., performed cunnilingus

on her—defendant contends the statements contradicted the testimony. We disagree

as the out-of-court statements at issue were corroborative and not substantially

different from the in-court testimony. Specifically, when asked if the moisture she

felt was in her “vaginal area[,]” Zara testified, “Yes.” Moreover, when asked if the

moisture feeling was “between the labia, or the lips of [her] vaginal area[,]” Zara

testified, “Yeah.” Similarly, Zara’s mother testified that Zara had explained to her

that she woke “up to [defendant] between her legs while she was on her stomach” and

that defendant’s “face was in between . . . her buttocks[.]”

Both the out-of-court statements and in-court testimony thus tended to show

that defendant pulled Zara’s pants down, manipulated her body, and pressed his

tongue against her vagina while she was sleeping—i.e., defendant engaged in a

sexual act by force and against Zara’s will. N.C.G.S. § 14-27.27(a)(1) (2023); see also

§ 14-27.20(4) (including cunnilingus as an example of a “sexual act”). Further, any

differences between the out-of-court statements and the in-court testimony do not

constitute substantial variance, let alone contradictory information. Accordingly, the

out-of-court statements at issue are not hearsay and were admissible for

11 As defendant points out in his brief, our Supreme Court considers cunnilingus to be “the slightest

touching by the lips or tongue of another to any part of the woman’s genitalia.” State v. Ludlum, 303

N.C. 666, 674 (1981).

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STATE V. LINDSAY

Opinion of the Court

corroboration purposes.12

However, even assuming arguendo that the trial court should not have

admitted the statements, defendant failed to show that the trial judge did not ignore

the statements in making their decision and that the statements were prejudicial.

Accordingly, “[w]e do not make assumptions of error where none is shown.” Jones,

260 N.C. App. at 110 (citation omitted).

In view of the fact that bench trials in North Carolina are a relatively new

occurrence and rarely used, see N.C. Const. art. I, § 24 (permitting criminal

defendants to waive their right to a jury trial in certain cases and request a bench

trial as of 2014), there do not appear to be cases that have determined whether a

plain error analysis is on point given the longstanding authority that a judge is

presumed to have ignored any incompetent evidence. Thus, it does not seem that one

can establish plain error in a bench trial despite defendant contending that such error

occurred here. Rather, as discussed above, the standard in a bench trial is distinct

from plain error review and requires that defendant introduce facts showing the trial

judge, in fact, considered inadmissible evidence.

B. State’s Closing Argument

Defendant contends that the trial court erred by failing to intervene ex mero

motu during the State’s closing argument. Specifically, defendant contends that the

12 Because the out-of-court statements were admissible as corroborative evidence, we do not need to

address whether the recorded statements constitute excited utterances.

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STATE V. LINDSAY

Opinion of the Court

State’s “repeated statements that [Zara] was telling the truth constituted improper

vouching and violated” N.C.G.S. § 15A-1230(a). We disagree.

“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.” State v. Jones, 355 N.C. 117, 133 (2002) (citation omitted).

The standard thus requires determining (1) whether the argument was improper,

and if so, (2) whether it “was so grossly improper as to impede the defendant’s right

to a fair trial.” State v. Huey, 370 N.C. 174, 179 (2017) (citations omitted).

Section 15A-1230 of the North Carolina General Statutes states that during

closing arguments, attorneys may not “express [their] personal belief[s] as to the

truth or falsity of the evidence or as to the guilt or innocence of the defendant . . . .”

N.C.G.S. § 15A-1230(a). Yet, attorneys “are given wide latitude in arguments to the

jury and are permitted to argue the evidence that has been presented and all

reasonable inferences that can be drawn from that evidence.” State v. Richardson,

342 N.C. 772, 792–93, cert. denied, 519 U.S. 890 (1996).

Here, the statements at issue—e.g., that Zara “ha[d] no reason to lie about

this”—were merely inferences reasonably drawn from the evidence, which defense

counsel details in its closing. However, even assuming arguendo that some of the

State’s closing arguments included impermissible statements of opinion, none of it

was so “grossly improper” as to have required the trial court to intervene ex mero

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Opinion of the Court

motu. Jones, 355 N.C. at 133; see also State v. Brown, 320 N.C. 179, 206 (1987)

(“Although the prosecutor may have strained the rational connection between

evidence and inference, he did not strain it so far as to require ex mero motu

intervention by the trial court . . . .”).

Further, because it is presumed that trial judges “ignore inadmissible evidence

when they serve as the finder of fact in a bench trial,” it follows that such judges also

presumably ignore any personal beliefs of counsel that were included in their closing

arguments. Jones, 248 N.C. App. at 424. Thus, like in Jones, the trial judge

presumably disregarded any personal beliefs purportedly inserted into the State’s

closing argument that pertained to whether Zara was telling the truth. Accordingly,

the trial court did not err by failing to intervene ex mero motu during the State’s

closing argument.

III. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment.

AFFIRMED.

Judge HAMPSON concurs.

Judge MURPHY dissents in part and concurs in result only.

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No. COA23-563– State v. Lindsay

MURPHY, Judge, dissenting in part and concurring in result only.

The Majority makes a sweeping expression in dicta that “it does not seem that

one can establish plain error in a bench trial[.]” Majority at 15. I cannot join my

colleagues in this sentiment as the presumption that the trial court ignores

incompetent evidence and improper arguments is merely a presumption. In re

M.L.B., 377 N.C. 335, 338 (2021) (emphasis added) (“When a judge sits without a

jury, [our Supreme] Court presumes that the trial court disregards any incompetent

evidence and will affirm the judgment or order if the trial court’s findings are

supported by competent evidence.”). In addressing the rebuttal of such a

presumption, we have previously held:

Respondents next argue the trial court erred in admitting

in evidence various hearsay statements, as well as medical

documents which allegedly were not properly

authenticated. The mere admission by the trial court of

incompetent evidence over proper objection does not

require reversal on appeal. See Best v. Best, 81 N.C. App.

337, 341[] . . . (1986). “Rather, the appellant must also

show that the incompetent evidence caused some

prejudice.” Id. In the context of a bench trial, an appellant

“must show that the court relied on the incompetent

evidence in making its findings.” Id. at 342[] . . . (citation

omitted).

In re Huff, 140 N.C. App. 288, 301 (2000), appeal dismissed, disc rev. denied, 353 N.C.

374 (2001); see also State v. Morales, 159 N.C. App. 429, 433–34 (2003); In re A.W.

283 N.C. App. 127, 132 (2022) (citing Morales, 159 N.C. App. at 433–34).

Preservation—or the lack thereof—does not change the concern regarding the trial

STATE V. LINDSAY

MURPHY, J., dissenting in part and concurring in result only.

court’s reliance on improper evidence or arguments; it merely adds to an appellant’s

burden to show a higher degree of resulting prejudice. The Majority’s dicta, especially

in a published decision, risks turning this legal fiction into an irrebuttable

presumption—or, at least, introducing unnecessary confusion into our caselaw.

With this proviso in mind, I agree that Defendant has not met his burden to

overcome the presumption. While it was not required to do so, the trial court included

its jury instructions in this matter and read them aloud at the equivalent of a jury

trial charge conference, allowing for the parties to be heard at their conclusion. State

v. Cheeks, 267 N.C. App. 579, 592–95 (2019) (“Here, the trial court elected to follow a

hybrid procedure by adopting ‘jury instructions’ setting forth the law it would apply

to the case, as required in a jury trial[.] . . . We appreciate the trial court’s attention

to detail and effort to provide this Court with a full understanding of the law applied

and the facts it determined to be true. . . . [T]he trial court handled it carefully. The

additional procedural steps used by the trial court [in a felony criminal bench trial]

are fully within the trial court’s discretion, but we note they are not required by the

North Carolina Rules of Criminal Procedure or Chapter 15A, Article 73 of North

Carolina’s General Statutes.”), aff’d, 377 N.C. 528 (2021). These jury instructions

included, inter alia, the following:

Evidence has been received tending to show that at an

earlier time a witness made a statement which may conflict

or be consistent with the testimony of a witness at this

trial. You must not consider such earlier statement as

evidence of the truth of what was said at that earlier time

-2-

STATE V. LINDSAY

MURPHY, J., dissenting in part and concurring in result only.

because it was not made under oath at this trial. If you

believe the earlier statement was made, and that it

conflicts or is consistent with the testimony of a witness at

this trial, you may consider this, and all other facts and

circumstances bearing upon the witness’ truthfulness in

deciding whether you will believe or disbelieve the witness’

testimony.

....

You have heard the evidence and the arguments of counsel,

if your recollection of the evidence differs from that of the

attorneys you are to rely solely upon your recollection.

Your duty is to remember the evidence whether called to

your attention or not. You should consider all of the

evidence, the arguments, contentions, and positions urged

by the attorneys, and any other contention that arises from

the evidence.

The law requires that the presiding judge be impartial.

You should not infer from anything I have done or said that

the evidence is to be believed or disbelieved, that a fact has

been proved, or what your findings ought to be. It is your

duty to find the facts and to render a verdict reflecting the

truth.

As a result, the record demonstrates that the trial court did not rely on the out-of-

court statements for substantive purposes, nor did it improperly consider the State’s

closing argument. Defendant’s only argument that the trial court improperly relied

upon these statements for substantive purposes is that the testimony at trial was not

otherwise sufficient to establish the act of cunnilingus; however, I concur with the

Majority’s determination as to the sufficiency of Zara’s testimony to establish the act

of cunnilingus. Majority at 14. Further, I agree with the Majority’s ultimate holding

that “the judge presumably disregarded any personal beliefs purportedly inserted

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STATE V. LINDSAY

MURPHY, J., dissenting in part and concurring in result only.

into the State’s closing argument that pertained to whether Zara was telling the

truth.” Majority at 17.

On this record, Defendant fails to overcome the presumption that the trial

court improperly considered the out-of-court statements for substantive purposes or

that the Defendant was prejudiced by the State’s closing argument. I respectfully

dissent from the Majority’s dicta regarding plain error review from a bench trial, but

I concur in upholding Defendant’s convictions.

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