An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA25-193
Filed 1 July 2026
Cumberland County, No. 22CR050303-250
STATE OF NORTH CAROLINA,
v.
JAVEENO RESIMO
Appeal by defendant from judgement entered 11 July 2024 by Judge Regina
M. Joe in Cumberland County Superior Court. Heard in the Court of Appeals 28
August 2025.
Attorney General Jeff Jackson, by Special Deputy Attorney General Francisco Benzoni, for the State.
Marilyn G. Ozer for the defendant.
FREEMAN, Judge.
Defendant appeals from judgment entered upon a jury verdict finding him
guilty of first-degree murder. On appeal, defendant argues the trial court erred by
instructing the jury on (1) two specific circumstances—grossly excessive force and
brutal or vicious circumstances—from which the jury could infer premeditation and STATE V. RESIMO
Opinion of the Court
deliberation, and (2) flight. Defendant further argues that both jury instructions
violated his constitutional rights. After careful review, we conclude that defendant
received a fair trial free from prejudicial error.
I. Factual and Procedural Background
Jessi Lindsley was killed on 11 November 2021. Lindsley’s friend last saw
Lindsley on 4 November 2021 and last heard from Lindsley via social media around
one to two days later. The friend continued to message Lindsley, and on 7 December
2021—after becoming worried from the lack of response—the friend reported
Lindsley missing to the Cumberland County Sheriff’s Office.
On 16 December 2021, Sergeant Mincey and other officers of the Cumberland
County Sheriff’s Office arrived at defendant’s home after being informed that
defendant may have information about Lindsley. Sergeant Mincey observed that
Lindsley’s blue van was in front of defendant’s home and there was a shotgun on the
front passenger seat. While Sergeant Mincey knocked on defendant’s front door,
other officers stood in the yard around the home. But after knocking and announcing
that she was with the Cumberland County Sheriff’s Office with no response, Sergeant
Mincey left.
Rebbeca Cashwell and her two children had been living with defendant at that
time. Cashwell testified at trial that defendant had just re-entered the home when
she heard Sergeant Mincey knock. Defendant instructed Cashwell and her children
to hide upstairs and remain quiet. Although defendant followed Cashwell and her
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children upstairs, he entered and exited the room multiple times. While Cashwell
and her children were hiding upstairs and defendant was pacing, the officers
continued to ask defendant to come to the door. Cashwell stated she sat in the room
for “close to an hour at least.” Defendant returned and “said that he was going to
take his chances on going out of the window and going through the backyard.” Soon
after, Cashwell returned downstairs, did not see defendant, and opened the door to
go outside.
Law enforcement walked the backyard with a canine to search for anyone who
may have left the home and did not find defendant. The officers returned to the home,
and Sergeant Mincey spoke with Cashwell again. Cashwell recounted to Sergeant
Mincey that defendant told her Lindsley’s body “was on the side of the road in a little
bit of water.”
That same day, Sergeant Mincey called Ray Whittington who indicated he
might have information about Lindsley. The next day, Sergeant Mincey and
detectives searched and found Lindsley deceased in a creek under a bridge near
defendant’s home.
On 11 January 2022, law enforcement interviewed Whittington for the first
time. Whittington had known Lindsley since around 2016 and had previously lived
with her. Defendant had also lived with Whittington in 2017. At trial, Whittington
testified that, on 12 November 2021, defendant and Michael Witt—defendant’s friend
and former roommate—came to his house when defendant first told Whittington, “he
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got one” and “shot somebody.” Whittington did not believe defendant, so defendant
showed him a picture of “a greenish tarp with a body lying there with half of its head
missing.” Defendant laughed the whole time he showed Whittington the picture, and
defendant told Whittington he had “got” Lindsley. Whittington testified at trial the
picture looked like Lindsley, “but it didn’t at the time” because he was “shocked.”
When Whittington asked defendant what he did with the body, defendant
laughed, “seemed kind of happy,” and replied, “She’s swimming with the fishes.”
Defendant told Whittington that Lindsley was “snitching” to law enforcement.
Whittington testified at 1:30 a.m. that night, he sent Lindsley a Facebook message
asking her to “[g]et up with [him] or something.”
On 27 January 2022, law enforcement interviewed Cashwell again. Cashwell
testified that she told law enforcement that defendant first told her he murdered
Lindsley about a week and half before the officers came to defendant’s house.
Cashwell and defendant got into a physical argument, and defendant “put his hands
around [Cashwell’s] throat four different times trying to stop [her] from leaving,”
with both her baby and older child attached to her body.
Cashwell’s older child mentioned Lindsley’s items in defendant’s garage, to
which defendant responded, Lindsley “won’t need those where she’s at.” Cashwell
asked defendant if he had something to do with Lindsley’s disappearance, and
defendant asked her what she meant. When Cashwell asked defendant again, “You
killed her, didn’t you?” defendant laughed, and replied, “Yeah.” Cashwell took
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defendant’s response to be a joke.
After Lindsley was reported missing, Cashwell “kind of started to believe
[defendant] when he said that he had killed her.” Cashwell again asked defendant if
he had something to do with Lindsley’s death. Defendant told Cashwell he had killed
Lindsley in a variety of ways, and when Cashwell did not believe defendant,
defendant told Cashwell he had a picture. Defendant showed Cashwell the picture,
which Cashwell described was of Lindsley “laying there, and she looked like she was
asleep, but you could see chunks of her brain.”
At trial, Witt testified he was living with defendant on 11 November 2021 and
was at defendant’s home with defendant when Lindsley was killed.1 Witt testified,
on the night of 11 November 2021, he overheard defendant and Lindsley arguing and
then heard two gunshots. Witt testified there was only “a small period of time”
between the shots. Witt walked to where defendant and Lindsley were arguing and
saw Lindsley laying at an angle on her back partially, in “a crunched-up position”
with defendant standing over her. Defendant instructed Witt to retrieve a tarp from
the back of his van, and Witt and defendant wrapped Lindsley’s body in that tarp and
placed her body in the back of the van. Subsequently, defendant drove that van to a
1 Throughout the course of investigation related to Lindsley’s murder, Witt’s narrative of events varied between interviews with law enforcement. For example, during Witt’s first interview with law enforcement, he denied living with defendant and being at the home on 11 November 2021. Witt later told law enforcement he was present in the home on 11 November 2021, but was upstairs. Eventually, Witt told law enforcement he was downstairs when he overheard arguing and gunshots outside. Some variations of Witt’s testimony described a couple being present in the home before and after Lindsley’s death.
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bridge over a body of water five to six miles from defendant’s home. They pulled over,
and at defendant’s instruction, Witt and defendant took Lindsley’s body out of the
van and threw her body over the bridge and into the water. There were no visitors
at defendant’s home that night, and neither defendant nor Witt left that night. Later
the next day and after defendant had fallen asleep, Witt left defendant’s house and
went to his godmother’s home.
At trial, defendant testified to his version of events. Defendant stated that on
11 November 2021, he left his phone at home with Witt to run errands, and Lindsley
came to his house that evening. Defendant overheard Witt and Lindsley arguing
when he entered his home, and when he questioned them about what was going on,
Witt and Lindsley provided different answers. Lindsley then reached for a gun and
pointed it at Witt, and defendant quickly took the gun from Lindsley. Witt then hit
Lindsley, causing her to fall, and Witt continued to hit Lindsley while standing over
her. Defendant testified he thought he heard a cracking sound while Lindsley lay on
the floor unconscious and attributed this noise to be the potential cause of Lindsley’s
death. Witt then took Lindsley outside, and defendant heard two gunshots and the
sound of a car leaving. Witt threatened defendant to not tell anyone what he had
seen, and the two did not leave the home the next day.
Defendant was ultimately indicted on 15 April 2024 for first-degree murder
and robbery with a dangerous weapon—the robbery charge was later dismissed.
Defendant’s matter went to trial on 25 June 2024.
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The medical examiner testified that Lindsley died from shotgun wounds to her
torso and head. Lindsley was likely first shot in the torso from “approximately two
to three feet,” which “completely sever[ed] her spinal cord . . . caus[ing] immediate
paralysis from the waist down.” Lindsley was likely then shot in the head “within
ten feet.”
The forensic analyst testified that DNA extracted from the trigger of the
shotgun was “approximately 297 thousand times more likely if it originated from
[defendant] and an unknown individual than if it originated from two unknown
individuals.” Similarly, DNA extracted from the shotgun grip was “approximately
6.13 octillion times more likely if it originated from [defendant] and an unknown
individual than if it originated from two unknown individuals.”
The data extraction detective testified that a two-second video created the
night of 11 November 2021 was recovered from defendant’s phone, and due to the
video’s short duration, it would likely be perceived as a photo. Whittington testified
that video was the same image defendant had shown him—an image of “a greenish
tarp with a body lying there with half of its head missing.”
Relevant on appeal, the trial court instructed the jury on the premeditation
and deliberation element of first-degree murder:
Neither premeditation nor deliberation are usually susceptible of direct proof. They may be proved by circumstances from which they may be inferred such as the conduct of the defendant before, during, and after the killing, use of grossly excessive force, infliction of lethal
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wounds after the victim is felled, brutal or vicious circumstances of the killing, manner in which or the means by which the killing was done
The trial court also instructed the jury on flight, stating: “Evidence of flight may be
considered by you together with all other facts and circumstances in this case in
determining whether the combined circumstances amount to an admission or show a
consciousness of guilt. However, proof of this circumstance is not sufficient in itself
to establish defendant’s guilt.” Defendant objected to these instructions and renewed
his objections.
On 11 July 2024, the jury found defendant guilty of first-degree murder. The
trial court sentenced defendant to life in prison without the possibility of parole.
Defendant gave notice of appeal in open court.
II. Jurisdiction
Because this Court has jurisdiction to hear an appeal from a final judgment of
a superior court, we have jurisdiction over defendant’s appeal of right. N.C.G.S.
§§ 7A-27(b), 15A-1444(a) (2025).
III. Standard of Review
We review a trial court’s decision regarding jury instructions de novo. State v.
Osorio, 196 N.C. App. 458, 466 (2009). “Jury instructions must be supported by
evidence.” State v. Bagley, 183 N.C. App. 514, 524 (2007) (citation omitted). When
reviewing the evidence supporting a jury instruction, “[t]he evidence must be
considered by the court in the light most favorable to the State, and the State is
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entitled to every reasonable inference to be drawn from the evidence.” State v.
Grullon, 240 N.C. App. 55, 58 (2015).
IV. Discussion
On appeal, defendant argues that the trial court erred by instructing the jury
on (1) two specific circumstances from which the jury could infer premeditation and
deliberation and (2) flight. Specifically, defendant argues that both instructions are
unsupported by “trial evidence.” Defendant further argues that both jury
instructions violated his constitutional rights. We address each argument in turn.
As a preliminary matter, “harmless-error review requires a defendant show
that there is a reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial out of which the
appeal arises, unless the error relates to a constitutional right.” State v. Leaks, 379
N.C. 57, 62 (2021); see also N.C.G.S. § 15A-1443(a) (2025). “When a defendant argues
the alleged error relates to a constitutional right, the burden shifts to the State to
demonstrate, beyond a reasonable doubt, that the error was harmless.” N.C.G.S.
§ 15A-1443(b) (2025).
Defendant alleges for the first time on appeal that both jury instructions
violated his “constitutional rights to due process and a fair trial.” However,
“[c]onstitutional issues not raised and passed upon at trial will not be considered for
the first time on appeal.” State v. Lloyd, 354 N.C. 76, 86–87 (2001). Accordingly, the
burden of showing prejudice is on the defendant. Leaks, 379 N.C. at 62.
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A. Grossly Excessive Force and Brutal or Vicious Circumstances
Defendant argues that the trial court erred by instructing the jury on two
specific circumstances from which the jury could infer premeditation and
deliberation. Specifically, defendant argues grossly excessive force and brutal or
vicious circumstances are unsupported by the record where the State failed to present
evidence of these circumstances.
Here, the trial court instructed the jury:
Neither premeditation nor deliberation are usually susceptible of direct proof. They may be proved by circumstances from which they may be inferred such as the conduct of the defendant before, during, and after the killing, use of grossly excessive force, infliction of lethal wounds after the victim is felled, brutal or vicious circumstances of the killing, manner in which or the means by which the killing was done.
First, this Court and our Supreme Court have rejected the argument that a
trial court errs by giving this instruction “even in the absence of evidence to support
each of the circumstances listed.” State v. Leach, 340 N.C. 236, 242 (1995); see State
v. Cummings, 326 N.C. 298, 315 (1990); State v. Baldwin, 240 N.C. App. 413, 421
(2015). In Leach, the Supreme Court explained that the North Carolina Pattern Jury
Instructions, which the trial court used to instruct the jury here, provide the jury with
examples of circumstances, “which, if shown to exist, permit premeditation and
deliberation to be inferred.” Leach, 340 N.C. at 241; see N.C.P.I.–Crim. 206.13. The
instruction explicitly “tells jurors that they ‘may’ find premeditation and deliberation
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from certain circumstances, ‘such as’ the circumstances listed.” Leach, 340 N.C. at
241. Accordingly, “[t]he instruction does not preclude a jury from finding
premeditation and deliberation from direct evidence or other circumstances; more
importantly, it does not indicate to the jury that the trial court is of the opinion that
evidence exists which would support each or any of the circumstances listed.” Id.
The Supreme Court held: “the trial court did not err by giving the instruction at issue
here, even in the absence of evidence to support each of the circumstances listed.” Id.
at 242.
Second, there is a plethora of evidence from which the jury could have found
premeditation and deliberation. See Leaks, 379 N.C. at 61 (It is a defendant’s burden
to “show that there is a reasonable possibility that, had the error in question not been
committed a different result would have been reached at the trial.”). The evidence,
viewed the light most favorable to the State, tended to show that defendant: shot
Lindsley twice, less than ten feet away, with a shotgun to the back and head; shot
Lindsley once while she was still alive, but was paralyzed; was seen standing over
Lindsley’s body in his home after Witt heard arguing and then gunshots; asked Witt
to assist him with disposing of Lindsley’s body; confessed to the murder of Lindsley
to multiple witnesses; described the location of Lindsley’s body to one witness; took a
picture of Lindsley’s body; and showed witnesses that picture. Cf. State v. Smith, 328
N.C. 99, 138 (1991) (holding that because there was evidence the victim was shot
twice at short range, the “evidence support[ed] the court’s instruction that
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premeditation and deliberation can be inferred from a brutal and vicious killing or
the use of grossly excessive force under the circumstances”).
Third and finally, even assuming the instructions given by the trial court were
not supported by evidence, defendant has failed to argue “a reasonable possibility
that a different result would have occurred at trial if the alleged error had not
occurred.” Leaks, 379 N.C. at 63. Defendant’s assertion that “one or more of the
jurors could have found premeditation and deliberation based on [defendant’s]
allegations against Witt” is ungrounded because the trial court repeatedly instructed
the jury to consider defendant’s acts alone. See State v. Brown, 327 N.C. 1, 23 (1990)
(“The jury charge when viewed as a whole is replete with instructions directing the
jury’s consideration to defendant’s acts alone.”). Our review of the record reveals that
trial court instructed the jury that
For you to find the defendant guilty of first-degree murder, the State must prove five things beyond a reasonable doubt. First, that the defendant intentionally and with malice killed the victim with a deadly weapon. . . . Second, the State must prove that the defendant’s act was a proximate cause of the victim’s death. . . . Third, that the defendant intended to kill the victim. . . . Fourth, that the defendant acted with premeditation. . . . And fifth, that the defendant acted with deliberation.
Accordingly, the trial court did not err in instructing the jury on grossly excessive
force and brutal or vicious circumstances when considering whether the jury could
infer premeditation and deliberation.
B. Flight
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Defendant similarly argues the trial court erred by instructing the jury on
flight because “[t]he State’s evidence failed to show that [defendant] took steps to
avoid apprehension.”
Here, the trial court instructed the jury following the North Carolina Pattern
Jury Instructions and stated: “Evidence of flight may be considered by you together
with all other facts and circumstances in this case in determining whether the
combined circumstances amount to an admission or show a consciousness of guilt.
However, proof of this circumstance is not sufficient in itself to establish defendant’s
guilt.” See also N.C.P.I.–Crim. 104.35.
“[A] trial court may properly instruct on flight where there is some evidence in
the record reasonably supporting the theory that defendant fled after the commission
of the crime charged.” State v. Lloyd, 354 N.C. 76, 119 (2001) (emphasis added). We
have defined flight as “leaving the scene of the crime and taking steps to avoid
apprehension.” State v. Gibson, 276 N.C. App. 230, 240 (2021). Therefore, “[m]ere
evidence that [the] defendant left the scene of the crime is not enough to support an
instruction on flight. There must also be some evidence that defendant took steps to
avoid apprehension.” State v. Thompson, 328 N.C. 477, 490 (1991).
Here, there is some evidence from which the jury could have found flight. The
evidence, viewed the light most favorable to the State, tended to show that defendant:
shot and killed Lindsley at his residence; hid when police came to his residence and
requested to speak with him after Lindsley was reported missing; hid from law
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enforcement in his home for around an hour; told Cashwell he was going to leave his
house through a window and go “through the backyard” to evade law enforcement;
and disappeared after his conversation with Cashwell until he was found and
arrested two days later. Therefore, there was evidence to show that defendant took
steps to avoid apprehension to support the flight instruction.
Even if it was error to instruct the jury on flight, defendant has failed to argue
“a reasonable possibility that a different result would have occurred at trial if the
alleged error had not occurred.” Leaks, 379 N.C. at 63. At trial, the State presented
overwhelming evidence of defendant’s guilt including that: defendant’s DNA was
found on the murder weapon; testimony that defendant confessed to murdering
Lindsley and showed witnesses a picture of her body after he shot her; a photo of
Lindsley’s body found on defendant’s phone; and testimony from defendant that
contradicted Lindsley’s injuries. See State v. McCanless, 234 N.C. App. 260, 263
(2014) (explaining the State’s presentation of “overwhelming evidence of defendant’s
guilt” defeated the defendant’s argument that a reasonable possibility exists that a
different result would have been reached had the error not occurred). Accordingly,
there is not a reasonable possibility that the jury would have reached a different
outcome absent the flight instruction.
V. Conclusion
The trial court did not err instructing the jury on grossly excessive force and
brutal or vicious circumstances when considering whether the jury could infer
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premeditation and deliberation or flight.
NO ERROR.
Judge COLLINS concurs.
Judge ARROWOOD concurs in result only.
Report per Rule 30(e).
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