State v. Draughon ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-58
No. COA21-177
Filed 1 February 2022
Hoke County, Nos. 14 CRS 51852-53, 17 CRS 152
STATE OF NORTH CAROLINA
v.
STANLEY MARCUS DRAUGHON and PHYLLIS ANN MULL
Appeal by defendants from judgments entered 4 December 2019 by Judge
Michael A. Stone in Hoke County Superior Court. Heard in the Court of Appeals
11 January 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Kayla D. Britt
and Assistant Attorney General Nicholas R. Sanders, for the State.
Jarvis John Edgerton, IV, for defendant-appellant Draughon.
Hynson Law, PLLC, by Warren D. Hynson, for defendant-appellant Mull.
ARROWOOD, Judge.
¶1 Stanley Marcus Draughon (“Draughon”) and Phyllis Ann Mull (“Mull”) appeal
from judgments entered upon jury verdicts finding Draughon guilty of assault with a
deadly weapon with the intent to kill inflicting serious injury (“AWDWIKISI”) and
conspiracy to commit AWDWIKISI, and finding Mull guilty of conspiracy to commit
AWDWIKISI. Draughon argues the trial court erred in denying his motion to
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suppress cell phone evidence and in denying his motion to dismiss for insufficient
evidence. Mull argues the trial court erred in denying her motion to dismiss for
insufficient evidence and in denying her motion for judgment notwithstanding the
verdict. For the following reasons, we hold that both defendants received fair trials
free from error.
I. Background
¶2 On 16 November 2015, a Hoke County grand jury indicted Draughon for
AWDWIKISI and robbery with a dangerous weapon. On 3 April 2017, a Hoke County
grand jury indicted Mull for AWDWIKISI, robbery with a dangerous weapon, and
conspiracy to commit AWDWIKISI. The grand jury returned superseding
indictments on 9 April 2018 charging Mull with the same crimes and adding an
additional charge against Draughon for conspiracy to commit AWDWIKISI.
¶3 The cases were joined for trial over Draughon’s objection and came on to be
tried at the 18 November 2019 Criminal Session of Hoke County Superior Court,
Judge Stone presiding. Both defendants pleaded not guilty to all charges. The
evidence presented at trial tended to show as follows.
¶4 Beginning in 1994, Perry McBryde (“McBryde”) lived with Mull in a home on
a 35-acre property in Raeford, North Carolina. At some point in 1997, the
relationship between McBryde and Mull “had kind of advanced to where [they] were
going to get married,” and Mull’s name was added to the deed for the property.
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McBryde and Mull had a child together in 2007, but the relationship steadily
deteriorated; by early 2011, there was not “much to” the relationship, but the two
continued to live together for their daughter’s benefit.
¶5 On 26 September 2014, McBryde picked his daughter up from school early
because they “were going to go shopping” for McBryde’s birthday. When McBryde
and his daughter walked into McBryde’s home, they saw Mull in the kitchen with a
man who was sitting at the kitchen bar. McBryde’s daughter asked Mull who the
man was, and Mull responded, “Stan.” McBryde then asked the man for his name,
and the man immediately responded by asking McBryde for his name. McBryde
approached the man and said “Look, you’re in my house. What is your name?” The
man responded, “I’m Stanley Draughon.” McBryde recognized the name and told
Draughon that he “didn’t want him there because of [McBryde’s] daughter and that
he needed to go.” Draughon did not leave and said, “I’ll be here as long as [Mull]
wants me here,” to which McBryde responded, “You need to go because if you don’t
go, there’s going to be trouble. I don’t want you around my daughter.” McBryde and
his daughter left to go shopping.
¶6 On 16 October 2014, McBryde spent the evening watching football in his office,
located in a building on the same property as his home. After the football game ended,
McBryde drove his truck back to his house from the office building. When McBryde
went to unlock and open the door, it “opened just a little bit, a few inches, and it
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abruptly shut right back and then it just swung open.” As the door swung open,
McBryde saw Draughon and a man he did not recognize standing in the doorway;
both were wearing “black toboggan[s]” that did not cover their faces. McBryde also
saw Mull standing behind the two men “wearing a white-ish colored nighty
with . . . roses on it.”
¶7 Almost immediately after the door opened, Draughon hit McBryde above his
left eye with a blunt object that “was two or three [feet] long.” McBryde “bear-hugged”
Draughon to prevent Draughon from continuing to hit McBryde, but McBryde began
to get hit in the back “with something that was burning” which McBryde later learned
was a taser. McBryde tried to get away but tripped over the tongue of the trailer
attached to his truck and fell on his back.
¶8 The unidentified man put McBryde in a chokehold, so McBryde pulled out a
box cutter1 that he “always” kept on the right-hand pocket of his jeans so that he
could defend himself. McBryde was then hit in the back of the head with an object
and attempted to use his arms and legs to shield himself from the beating. McBryde
eventually “just laid there and . . . kind of tried to play dead.” Draughon and the
other man then left the scene, and McBryde called 911 on his cell phone.
¶9 Officers Alan Sanchez (“Officer Sanchez”) and Tracy Grady (“Officer Grady”)
1 McBryde later stated that it was a “blue cobalt box cutter.”
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and Detective Kelly Jacobs (“Detective Jacobs”) with the Hoke County Sheriff’s Office
responded to the scene. Officer Sanchez was the first to arrive at the scene and noted
that McBryde was lying on his back near the truck and appeared to have been
“severely beaten[.]” McBryde “[a]ppeared to be in excruciating pain” but told the
officers that Draughon had assaulted him. Officer Grady entered the home and
continuously yelled “Sheriff’s department” and “Come out” but received no response.
Officer Grady eventually found Mull in a bedroom in bed with her child; when Officer
Grady asked Mull if she had heard or seen “what was going on,” Mull stated that she
had neither heard nor seen anything. When Officer Grady told Mull that McBryde
was laying outside and had been injured, Mull “didn’t say anything” and had “[n]o
expression.” At trial, Detective Jacobs testified that based on his understanding at
the scene, the situation was “being looked at so far as an assault, but still in the
misdemeanor capacity.”
¶ 10 McBryde was transported to the hospital, where he was diagnosed with two
broken arms, a laceration above the left eye, two scalp lesions, three right lower
extremity wounds, and two left upper extremity wounds. McBryde was referred to
Orthopedic Physician Assistant Scott Olson (“Olson”) who found several other
fractures in his arms and legs. Specifically, Olson determined that McBryde had a
displaced fracture in the right ulna, a non-displaced fracture in the left ulna, and a
fracture of the ulnar head in McBryde’s left arm. Olson described McBryde’s injuries
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as “nightstick fractures.”2 Olson placed McBryde in casting throughout his body, and
a surgeon operated on his right displaced ulnar fracture.
¶ 11 On 29 October 2014, McBryde went to the Hoke County District Attorney’s
office, where he spoke to a prosecutor and gave a statement to Detective William Tart
(“Detective Tart”). Detective Tart subsequently retrieved security camera footage
from McBryde’s office. After reviewing the footage, Detective Tart confirmed that the
footage showed something “consistent with a disturbance, assault[,]” but was unable
to identify “specific people[.]”
¶ 12 Detective Tart “reopened the investigation as a felonious assault” after
speaking to McBryde and seeing the extent of his injuries. Detective Tart went to
McBryde’s property and took pictures, checked for traces of blood or biological
evidence, and swabbed the truck for DNA. Detective Tart did not submit the swabs
for analysis and did not take fingerprints, as nearly two weeks had passed since the
assault and the scene was “contaminated” by that time.
¶ 13 On 31 October 2014, Detective Tart called Mull to schedule an interview and
take a statement, which took place on 4 November 2014. On 5 November 2014,
Detective Tart swore to an arrest warrant on Draughon for charges of felony
AWDWIKISI and robbery with a dangerous weapon. Draughon turned himself in at
2According to Olson, the term originally “came from Britain” and referred to people hit in
the arms with “billy clubs” that “would crack the ulna[.]”
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the Hoke County Sheriff’s Office on 10 November 2014.
¶ 14 When Draughon turned himself in, Detective Tart seized Draughon’s cell
phone. At trial, when the State began to question Detective Tart about the cell phone,
Draughon’s trial counsel objected, and the trial court conducted a bench conference
outside the presence of the jury. The objection was as follows:
If Your Honor, please, I lodged an objection to the State
making a reference to Mr. Draughon’s telephone, and the
reason I make that objection is because it was illegally
obtained. There were several search warrants that were
contained in discovery and one of the search warrants says
to search the phone, but looking back at the discovery, none
of those search warrants gives law enforcement authority
to search a vehicle or vehicle that belonged -- that
transported Mr. Draughon to the sheriff’s department.
Our information is that on November 10th, 2014, Mr.
Draughon turned himself in. He was driven there by his
father. He went inside the sheriff’s department and while
he was inside the sheriff’s department, someone from the --
either Mr. Tart or someone from the sheriff department
came outside and began searching the vehicle in which Mr.
Draughon was a passenger.
We would contend that there was no search warrant for
that telephone. There was no search warrant that would
allow him to go in that car to search that vehicle. We would
contend that a passenger in the vehicle has just as much
rights as the driver of that vehicle. The fact that they
illegally obtained this telephone, we would ask the Court
to not allow them to introduce, number one, any testimony
that the phone was seized and, number two, any evidence
pertaining to the telephone under the circumstances under
which it was seized in this particular case.
So that is my objection. It is illegally obtained, it was
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illegally seized. There was no search warrant, no
permission given to take the phone, and they took this
phone and now [are] trying to introduce it into evidence,
Your Honor.
Draughon’s objection was overruled, and Draughon’s trial counsel noted his exception
to the ruling, which was noted for the record.
¶ 15 Detective Tart testified that he obtained a search warrant for the contents of
the cell phone. In searching the contact list of Draughon’s cell phone, Detective Tart
found a number associated with Mull under the name “Phillip Miller.” A data
extraction of Draughon’s phone showed a total of 557 phone calls and 533 text
messages made on Draughon’s phone between 18 October 2014 and
10 November 2014. Of the 533 text messages, 123 entries were either sent to or from
the “Phillip Miller” contact. Sixty-nine of the phone call entries on Draughon’s phone
had been deleted, many of which apparently had nothing to do with the case; many
of the text messages from “Phillip Miller” were not deleted. The data extraction was
limited to metadata and did not contain substantive content of the communications.
¶ 16 In October 2016, Mull moved in with Toni Caruso (“Caruso”) and stayed with
her until around Christmas of that year. At some point while Mull was staying with
Caruso, Mull gave Caruso a box opener. At trial, Caruso testified that she asked Mull
where it came from, and Mull responded that “[i]t was [McBryde’s] and he had it that
night.” Caruso described the box cutter as “maybe six inches long, blue and silver
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looking.” After reading a news article about the case, Caruso became concerned about
possessing the box cutter and called the Hoke County District Attorney’s Office to
“see what [she] needed to do with it.” A detective collected the box cutter from
Caruso’s home.
¶ 17 At the close of the State’s evidence, both defendants made motions to dismiss
all charges. The trial court denied both motions.
¶ 18 Draughon tendered three alibi witnesses in his defense. Paul Alducin
(“Alducin”) testified that he was an acquaintance of Draughon’s and had worked with
him at a sound and lighting production company. Alducin testified that on
16 October 2014, he arrived at Louie’s Bar in Fayetteville, North Carolina at around
10:15 p.m. and saw Draughon at Louie’s Bar at around 10:30 p.m., 11:00 p.m., and
1:00 a.m. that night. Jerry Wayne Godfrey (“Godfrey”) also testified that he was at
Louie’s Bar on the night of 16 October 2014. Godfrey stated that he arrived
“[b]etween 8:00 and 8:15” and saw Draughon “standing and walking around” within
15 or 20 minutes of his arrival. Godfrey testified that he left Louie’s Bar around 11:30
p.m., and Draughon was still there when he left. Jack Bussey (“Bussey”) similarly
testified that he arrived at Louie’s Bar between 8:00 p.m. and 8:30 p.m., saw
Draughon socializing, and saw that Draughon was still at the bar when Bussey left
at around 12:30 a.m. Mull did not present any witnesses or evidence.
¶ 19 At the close of all evidence, Draughon and Mull moved to dismiss all charges
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for insufficient evidence. The trial court denied Draughon’s and Mull’s motions with
respect to the charges of AWDWIKISI and conspiracy and granted the motions with
respect to robbery with a dangerous weapon, dismissing that charge for both
defendants.
¶ 20 On 4 December 2019, the jury returned verdicts for both defendants. The jury
found Draughon guilty of AWDWIKISI and conspiracy to commit AWDWIKISI. The
jury found Mull not guilty of AWDWIKISI and guilty of conspiracy to commit
AWDWIKISI.
¶ 21 After the jury returned its verdicts and before proceeding to sentencing,
Draughon made an oral motion for judgment notwithstanding the verdict, which Mull
joined:
THE COURT: All right. Mr. John Thompson, moving to
sentencing.
[Draughon’s counsel]: Your Honor, we would make a
motion at this time for judgment notwithstanding the
verdict in this case.
THE COURT: All right. Mr. Van Camp, any issues?
[Mull’s counsel]: I will join in that motion.
THE COURT: The motion for dismissal of both
[Draughon’s counsel] and [Mull’s counsel] is denied.
¶ 22 The trial court sentenced Draughon to a term of 96 to 128 months
imprisonment on the AWDWIKISI conviction and 67 to 93 months imprisonment on
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the conspiracy conviction, running consecutively. The trial court sentenced Mull to a
term of 84 to 113 months imprisonment on her conspiracy conviction. Draughon and
Mull gave oral notice of appeal in open court.
II. Discussion
¶ 23 Draughon contends the trial court erred in denying his motions to suppress
and to dismiss. Mull contends the trial court erred in denying her motions to dismiss
and for judgment notwithstanding the verdict. We address each defendant’s appeal
in turn.
A. Defendant Draughon
1. Motion to Suppress
¶ 24 In superior court, a defendant is generally required to make a motion to
suppress prior to trial “unless the defendant did not have reasonable opportunity to
make the motion before trial or unless a motion to suppress is allowed during trial”
under the remaining statutory subsections. N.C. Gen. Stat. § 15A-975(a) (2021).
A motion to suppress may be made for the first time during
trial when the State has failed to notify . . . the defendant,
sooner than 20 working days before trial, of its intention to
use the evidence, and the evidence is . . . obtained by virtue
of a search without a search warrant[.]
N.C. Gen. Stat. § 15A-975(b).
¶ 25 A motion to suppress “must state the grounds upon which it is made[.]” N.C.
Gen. Stat. § 15A-977(a) (2021). A motion to suppress may be summarily denied if the
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motion “does not allege a legal basis for the motion[,]” or if the supporting affidavit
“does not as a matter of law support the ground alleged.” N.C. Gen. Stat. § 15A-
977(c). “A motion to suppress made during trial may be made in writing or orally and
may be determined in the same manner as when made before trial. The hearing, if
held, must be out of the presence of the jury.” N.C. Gen. Stat. § 15A-977(e).
¶ 26 “A motion to suppress made at trial, whether oral or written, should state the
legal ground upon which it is made.” State v. Roper, 328 N.C. 337, 361, 402 S.E.2d
600, 614 (1991). “While an affidavit is not required for a motion timely made at trial,
the defendant must, however, specify that he is making a motion to suppress and
request a voir dire.” Id.When a defendant files a motion to suppress before or at
trial in a manner that is consistent with N.C.G.S. § 15A-
975, that motion gives rise to a suppression hearing and
hence to an evidentiary record pertaining to that
defendant’s suppression arguments. But when a
defendant . . . does not file a motion to suppress at the trial
court stage, the evidentiary record pertaining to his
suppression arguments has not been fully developed, and
may not have been developed at all.
State v. Miller, 371 N.C. 266, 269, 814 S.E.2d 81, 83 (2018). This failure may
constitute a complete waiver of appellate review. Id. at 273, 814 S.E.2d at 85 (“By
doing so, [the defendant] completely waived appellate review of his Fourth
Amendment claims.”)
¶ 27 Draughon asserts the State did not file any notice of intent to introduce the
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challenged cell phone evidence as required under N.C. Gen. Stat. § 15A-975(a), and
accordingly Draughon’s motion to suppress was timely made during trial. A review
of the transcript, however, reflects that Draughon’s trial counsel made a general
objection without specifying that he was making a motion to suppress. Draughon’s
trial counsel also never requested a voir dire. At no point during the argument did
Draughon, the State, or the trial court acknowledge that a motion to suppress was
being addressed. The record and transcript reveal that Draughon only made a
general objection, and Draughon has failed to meet the burden of establishing that
he made a motion to suppress in proper form. Because Draughon did not file a motion
to suppress the cell phone evidence before or during trial, he has completely waived
appellate review of the issue.
2. Motion to Dismiss
¶ 28 Although Draughon made motions to dismiss all charges at the close of the
State’s evidence and at the close of all evidence, Draughon’s appeal only addresses
the conspiracy conviction. Accordingly, our review of the trial court’s ruling on
Draughon’s motion to dismiss is limited to the charge of conspiracy to commit
AWDWIKISI.
¶ 29 “In ruling on a motion to dismiss, the trial court need determine only whether
there is substantial evidence of each essential element of the crime and that the
defendant is the perpetrator.” State v. Winkler, 368 N.C. 572, 574, 780 S.E.2d 824,
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826 (2015) (quotation marks omitted) (quoting State v. Mann, 355 N.C. 294, 301, 560
S.E.2d 776, 781 (2002)). “Substantial evidence is [the] amount . . . necessary to
persuade a rational juror to accept a conclusion.” Id. (quoting Mann, 355 N.C. at 301,
560 S.E.2d at 781). In evaluating the sufficiency of the evidence to support a criminal
conviction, the evidence must be considered “in the light most favorable to the State;
the State is entitled to every reasonable intendment and every reasonable inference
to be drawn therefrom[.]” Id. (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d
114, 117 (1980)).
¶ 30 If the record developed at trial contains “substantial evidence, whether direct
or circumstantial, or a combination, ‘to support a finding that the offense charged has
been committed and that the defendant committed it, the case is for the jury and the
motion to dismiss should be denied.’ ” Id. at 575, 780 S.E.2d at 826 (quoting State v.
Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)). “Whether the State
presented substantial evidence of each essential element of the offense is a question
of law; therefore, we review the denial of a motion to dismiss de novo.” State v.
Chekanow, 370 N.C. 488, 492, 809 S.E.2d 546, 550 (2018) (citation and quotation
marks omitted).
¶ 31 “ ‘A criminal conspiracy is an agreement between two or more persons to do an
unlawful act or to do a lawful act in an unlawful way or by unlawful means.’ ” State
v. Billinger, 213 N.C. App. 249, 255, 714 S.E.2d 201, 206 (2011) (quoting State v.
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Bindyke, 288 N.C. 608, 615, 220 S.E.2d 521, 526 (1975)).
¶ 32 “A mutual, implied understanding is sufficient, so far as the combination or
conspiracy is concerned, to constitute the offense.” State v. Bindyke, 288 N.C. 608,
615-16, 220 S.E.2d 521, 526 (1975) (citation and quotation marks omitted). “The
conspiracy is the crime and not its execution.” Id. at 616, 220 S.E.2d at 526 (citing
State v. Lea, 203 N.C. 13, 164 S.E. 737 (1932)). “Therefore, no overt act is necessary
to complete the crime of conspiracy[,]” and “[a]s soon as the union of wills for the
unlawful purpose is perfected, the offense of conspiracy is completed.” Id. (citation
omitted). “The existence of a conspiracy may be established by direct or
circumstantial evidence.” Id. Direct proof of a conspiracy “is not essential, for such
is rarely obtainable. It may be, and generally is, established by a number of indefinite
acts, each of which, standing alone, might have little weight, but, taken collectively,
they point unerringly to the existence of a conspiracy.” Id. (citation and quotation
marks omitted).
¶ 33 Draughon argues that the evidence raised no more than a mere suspicion that
an agreement existed between him and either Mull or the unidentified man to commit
the offense of AWDWIKISI. We disagree.
¶ 34 The evidence presented at trial reflected that Draughon and Mull had a
relationship, supported by numerous calls and texts between the two and Draughon’s
presence at McBryde’s house on 26 September 2014. Draughon’s presence at
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McBryde’s house raised a conflict between the two, and Draughon stated that he
would remain at the house “as long as” Mull wanted him there. McBryde testified
that when he was assaulted, he saw Draughon and the unidentified man in the
doorway of his home, with Mull standing in the doorway behind them. Draughon and
the unidentified man worked together in beating McBryde, with Draughon using a
blunt object and the unidentified man placing McBryde in a chokehold and using a
taser. Draughon and the unidentified man continued to beat McBryde until he
“play[ed] dead.” And in October 2016, Mull gave to a third-party the box cutter that
McBryde “had that night.”
¶ 35 Although each of these indefinite acts and occurrences may have little weight
standing alone, taken collectively, they constitute substantial evidence that a
conspiracy existed between either Draughon and Mull or between Draughon and the
unidentified man to assault McBryde with a deadly weapon, with the intent to kill.
The trial court did not err in denying Draughon’s motion to dismiss the conspiracy
charge.
B. Defendant Mull
1. Motion to Dismiss
¶ 36 The standard of review and rules of law for this issue are the same as
previously stated with respect to Draughon.
¶ 37 As previously stated, the evidence presented at trial reflected that Mull had a
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friendly relationship with Draughon and that Draughon was at McBryde and Mull’s
home “as long as” Mull wanted him there. The data extraction on Draughon’s phone
also revealed a significant volume of calls and text messages between Draughon and
Mull between 18 October 2014 and 10 November 2014. McBryde testified that on the
night of the assault, he again saw Mull and Draughon together in the home, this time
standing in the doorway just before the assault began. And approximately two years
after the assault, Mull gave away a box cutter belonging to McBryde, which “he
had . . . that night.”
¶ 38 The evidence reflects that although Mull and McBryde had been engaged in a
romantic relationship, shared a child, and continued to live on the same property,
their relationship had deteriorated and animosity existed between the two. On
16 October 2014, Mull invited Draughon and the unidentified man into the house,
where they waited for McBryde to return so that they could assault him. Mull was
present at the house when police arrived, and McBryde testified that he saw her
standing immediately behind Draughon and the unidentified man before the assault
took place. Finally, Mull maintained possession of the box cutter that went missing
during the assault, and when she gave it to Caruso, she confirmed that it belonged to
McBryde and that McBryde had the box cutter “that night.”
¶ 39 Taken together, and considering the evidence “in the light most favorable to
the State,” the evidence points unerringly to the existence of an agreement between
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Mull and Draughon for Draughon and an unidentified man to assault McBryde with
a deadly weapon, with intent to kill. Although Mull did not take an active part in the
assault, “[t]he conspiracy is the crime and not the execution.” Bindyke, 288 N.C. at
616, 220 S.E.2d at 526 (citation omitted). The trial court did not err in denying Mull’s
motion to dismiss.
2. Motion for Judgment Notwithstanding the Verdict
¶ 40 Mull next argues the trial court erred in denying her motion for judgment
notwithstanding the verdict because the jury’s verdicts “were legally inconsistent and
contradictory,” and accordingly this Court should vacate Mull’s conviction and grant
her a new trial. We disagree.
¶ 41 A motion for judgment notwithstanding the verdict is treated the same as a
motion for directed verdict. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362,
368-69, 329 S.E.2d 333, 337 (1985) (citations omitted). “In a criminal case, a motion
for directed verdict and a motion to dismiss have the same effect and are reviewed
under the same standard of review on appeal.” State v. Coleman, 254 N.C. App. 497,
500, 803 S.E.2d 820, 823 (2017) (citation omitted). Accordingly, a motion for
judgment notwithstanding the verdict and a motion to dismiss have the same effect
and are reviewed under the same standard of review on appeal.
¶ 42 Rule 10 of the North Carolina Rules of Appellate Procedure provides:
In order to preserve an issue for appellate review, a party
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must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon
the party’s request, objection, or motion.
N.C.R. App. P. 10(a). Although this Court may suspend the Rules of Appellate
Procedure to review an unpreserved issue, it may only do so “[t]o prevent manifest
injustice to a party, or to expedite decision in the public interest[.]” N.C.R. App. P. 2.
“[T]he exercise of Rule 2 was intended to be limited to occasions in which a
fundamental purpose of the appellate rules is at stake, which will necessarily be rare
occasions.” State v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007) (citations
and quotation marks omitted).
¶ 43 In this case, Mull joined Draughon’s oral motion for judgment notwithstanding
the verdict, with Mull’s trial counsel stating: “I will join in that motion.” Mull’s trial
counsel did not state that the basis of her motion was the alleged inconsistent verdicts
of guilty to conspiracy and not guilty to AWDWIKISI, which is the argument Mull
now presents on appeal. Mull’s trial counsel did not make any further statements or
arguments with respect to the motion to make apparent the specific grounds for the
motion. Because Mull failed to state the specific grounds for the ruling Mull desired,
the issue is not preserved for appellate review.
¶ 44 Mull requests that we invoke Rule 2 to review the matter because Mull was
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sentenced to a minimum of seven years imprisonment “on the basis of what appear
to be legally inconsistent and mutually exclusive verdicts, warranting invocation of
Rule 2 to prevent manifest injustice.” The State, on the other hand, argues that Mull
has not shown that the circumstances of this case warrant suspension of the Rules of
Appellate Procedure. To resolve this question, we address the merits of Mull’s
argument.
¶ 45 “In North Carolina jurisprudence, a distinction is drawn between verdicts that
are merely inconsistent and those which are legally inconsistent and contradictory.”
State v. Mumford, 364 N.C. 394, 398, 699 S.E.2d 911, 914 (2010) (citation omitted).
“[W]hen there is sufficient evidence to support a verdict, ‘mere inconsistency will not
invalidate the verdict.’ ” Id. (quoting State v. Davis, 214 N.C. 787, 794, 1 S.E.2d 104,
108 (1939)). “Verdicts are inconsistent when they reflect some logical flaw or
compromise in the jury’s reasoning.” State v. Watson, 2021-NCCOA-186, ¶ 38. “[A]
verdict is legally contradictory, or mutually exclusive, when it purports to establish
that the defendant is guilty of two separate and distinct criminal offenses, the nature
of which is such that guilt of one necessarily excludes guilt of the other.” Id. ¶ 39
(quotation marks omitted).
¶ 46 In Mumford, our Supreme Court concluded the verdicts were inconsistent but
not contradictory because a conviction for felony serious injury by vehicle “does not
require a conviction of driving while impaired under N.C.G.S. § 20-138.1 or N.C.G.S.
STATE V. DRAUGHON
2022-NCCOA-58
Opinion of the Court
§ 20-138.2, but only requires a finding that the defendant was engaged in the conduct
described under either of these offenses.” Mumford, 364 N.C. at 401, 699 S.E.2d at
916.
¶ 47 Conspiracy is a distinct and separate crime from a principal offense, even
where the principal offense is based on an “acting in concert” theory. State v.
Kemmerlin, 356 N.C. 446, 477, 573 S.E.2d 870, 891 (2002). “The crime of conspiracy
is complete when there is a meeting of the minds and no overt act is necessary.” State
v. Christopher, 307 N.C. 645, 649, 300 S.E.2d 381, 383 (1983) (citation omitted).
¶ 48 In this case, the jury found Mull not guilty of AWDWIKISI and guilty of
conspiracy to commit AWDWIKISI. These verdicts are not inconsistent and legally
contradictory or mutually exclusive. The two crimes are not “such that guilt of one
necessarily excludes guilt of the other” and are instead legally consistent. See
Watson, ¶ 39. Substantial evidence established that Mull and Draughon had a
meeting of the minds with respect to the assault on McBryde; this completed the
crime of conspiracy, and no overt act on Mull’s part was necessary. Mull has failed
to show that this case presents a “rare occasion” warranting the exercise of Rule 2,
and has also failed to show that the verdicts were legally contradictory or mutually
exclusive. Accordingly, we hold that the trial court did not err in denying Mull’s
motion for judgment notwithstanding the verdict.
III. Conclusion
STATE V. DRAUGHON
2022-NCCOA-58
Opinion of the Court
¶ 49 For the foregoing reasons, we hold that Draughon and Mull received fair trials
free from error, and that the trial court did not err in denying their motions.
NO ERROR.
Judges HAMPSON and CARPENTER concur.