An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA25-144
Filed 17 June 2026
Cleveland County, No. 22CR000409-220
STATE OF NORTH CAROLINA
v.
JERMAINE SANDERS, Defendant.
Appeal by Defendant from judgment entered 28 May 2025 by Judge Clifton H.
Smith in Cleveland County Superior Court. Heard in the Court of Appeals 23
September 2025.
Attorney General Jeff Jackson, by Assistant Attorney General Ashton H. Roberts, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C. Franke, for Defendant.
PER CURIAM.
Defendant Jermaine Sanders appeals his conviction of assault inflicting
serious bodily injury entered 28 May 2025. Defendant argues the trial court plainly
erred by failing to instruct the jury on the lesser included charge of assault inflicting
serious injury. Defendant also argues the trial court erred by admitting video STATE V. SANDERS
Opinion of the Court
evidence of a prior altercation between Defendant and his wife, Jennifer Sanders. We
hold the trial court did not plainly err by omitting the lesser charge because
Defendant failed to show sufficient prejudice. We also hold the trial court did not
abuse its discretion by admitting video evidence of a prior bad act because its
prejudicial effect did not substantially outweigh its probative value.
I. Factual and Procedural History
Defendant was convicted of assault inflicting serious bodily injury. At trial,
the State offered evidence that tended to show the following:
On the morning of 17 March 2022, Defendant woke Jennifer to complain that
meat had been left out to thaw overnight. Defendant took towels to clean up the meat
and Jennifer returned to sleep. When Defendant finished cleaning the mess, he put
the towels in the dryer, waking Jennifer for a second time. Jennifer poured herself a
cup of coffee while Defendant took a phone call from his cousin. Defendant told
Jennifer that he intended to take her car, despite having no driver’s license. Jennifer
opposed Defendant’s plan and the two began arguing.
The argument escalated when Defendant threw a television remote at
Jennifer. Jennifer retaliated by throwing her coffee cup at Defendant. Defendant
responded by choking Jennifer so she would release her car keys. Jennifer bit
Defendant to stop the choking. Jennifer then grabbed her phone and ran outside to
call emergency services. Defendant locked the door behind Jennifer. Jennifer broke
a window to get back inside. Defendant then exited the home and shattered
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Jennifer’s phone screen. Jennifer ran to their neighbor’s home and Defendant
entered Jennifer’s car. Jennifer ran back to her car and sat on the hood to prevent
Defendant from driving away. Defendant then drove down the driveway with
Jennifer on the hood. Defendant and Jennifer continued to argue while Defendant
was driving. Jennifer put one foot on the ground to attempt to stop the car.
Defendant responded by accelerating. Jennifer fell off the hood of the car.
Cleveland County Sheriff Lieutenant Joe Burris and paramedics arrived and
took Jennifer to the emergency room at Atrium Health Cleveland Hospital. Dr. Victor
Zuniga diagnosed Jennifer with a concussion, left hip pain, an ankle fracture, and
skin abrasion on her arm. Dr. Zuniga estimated Jennifer’s injuries would take six to
eight weeks to fully heal. Jennifer was discharged from the hospital and referred to
OrthoCarolina. While at OrthoCarolina, Jennifer underwent surgery to remove
temporary screws from her ankle.
On 11 April 2022, Defendant was indicted for assault inflicting serious bodily
injury, assault with a deadly weapon inflicting serious injury, assault by
strangulation, assault on a female, communicating threats, and interference with
emergency communications.
Two years later, on 4 March 2024, Defendant moved in limine to exclude
evidence of Defendant’s previous offenses under Rules 403 and 404 of the North
Carolina Rules of Evidence. On 7 May 2024, the State filed a notice of expert witness.
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Defendant filed his objection to the State’s expert on 13 May 2024, arguing the State
did not provide Defendant with the expert’s opinion or basis.
The matter was set for trial in late May 2024. Defendant moved pretrial to
appear in civilian clothes, to exclude evidence under Rule 607 to “prevent
impeachment” of the State’s witness, and to renew Defendant’s objection to the
State’s expert. The trial court granted Defendant’s motion to appear in civilian
clothes and denied Defendant’s other two motions.
After the State called Jennifer to testify, Defendant renewed his objection to
the State’s use of character evidence under Rules 403 and 404. Defendant specifically
argued the State intended to introduce 2021 body camera footage from Cleveland
County Sherriff Detective Vincent Boudreau to show Defendant’s conformity with a
specific character trait. The body camera footage tended to show Defendant attacking
Jennifer with a sword. The trial court overruled the objection and allowed Jennifer
to testify as to prior instances of domestic violence between Defendant and Jennifer
under Rule 404(b). The State later called Detective Boudreau and offered the body
camera footage without objection from Defendant.
The State then called Dr. Zuniga to testify. Defendant argued the State should
have subpoenaed the applicable OrthoCarolina surgeon rather than Dr. Zuniga. The
State responded expert witnesses need not have personal knowledge and may rely
upon the opinions of others. The trial court then overruled the objection, and Dr.
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Zuniga testified concerning both Jennifer’s emergency room visit and screw removal
surgery.
Defendant moved to dismiss prior to the close of the State’s evidence, arguing
Defendant’s right to confrontation under Amendment VI of the United States
Constitution was violated by allowing Dr. Zuniga to testify on behalf of the
OrthoCarolina surgeon. The trial court denied the motion. Defendant then moved to
dismiss the charges of assault with a deadly weapon inflicting serious injury and
assault inflicting serious bodily injury at the close of the State’s evidence. Defendant
renewed all of his prior objections and argued the State failed to prove Jennifer
suffered serious injury. The motions were again denied. Defendant did not put on
evidence or contest the proposed jury instructions.
The trial court instructed the jury as to each of the alleged offenses, without
instructing as to any lesser included offenses. The trial court also provided the jury
with the following limiting instruction:
Evidence has been received tending to show that in February of 2021 . . . there was a domestic violence incident investigated by the Cleveland County Sheriff’s Office. This evidence was solely received for the purpose of showing . . . [D]efendant had the intent, which is a necessary element of the crimes charged in this case, and the absence of mistake. If you believe this evidence, you may consider it but only for the limited purpose for which it was received. You may not consider it for any other purpose.
(Emphasis added).
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After deliberation, the jury found Defendant guilty of assault inflicting serious
injury. Defendant orally appealed.
II. Analysis
Defendant raises two issues on appeal: first, the trial court plainly erred by
failing to instruct the jury as to the lesser included offense of assault inflicting serious
injury; and second, the trial court erred by admitting video evidence from a prior
offense because the evidence’s prejudicial effect substantially outweighed its
probative value.
A. Jury Instructions
Defendant concedes he failed to properly preserve an objection to the jury
instructions under Rule 10(a) of the North Carolina Rules of Appellate Procedure.
However, Defendant argues this Court should review the trial court’s jury
instructions for plain error because the jury “probably would have convicted
[Defendant] of, if anything, the lesser charge” had the trial court instructed the jury
as to both assault inflicting serious bodily injury and the lesser-included offense of
assault inflicting serious injury. Accordingly, Defendant argues this Court must
vacate the conviction and grant him a new trial.
Ordinarily, if a party fails to properly preserve an issue at trial, he is precluded
from raising the issue on appeal. N.C. R. App. P. 10(a)(1). However, if the party is a
criminal defendant, he may raise his improperly preserved issue concerning the
admission of evidence or jury instructions if the “judicial action questioned is
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specifically and distinctly contended to amount to plain error.” N.C. R. App. P.
10(a)(4).
To establish plain error, “a defendant must demonstrate that a fundamental
error occurred at trial[]” and the reviewing court “must examine the entire record [to]
determine if the . . . error had a probable impact on the jury’s finding of guilt.” State
v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012); State v. Odom, 307 N.C.
655, 661, 300 S.E.2d 375, 378–79 (1983). Jury instructions rise to plain error only
when the trial court’s error was “so fundamental that it tilted the scales and caused
the jury to reach its verdict.” State v. Bagley, 321 N.C. 201, 211, 362 S.E.2d 244, 251
(1987). The reviewing court “must be convinced” by the criminal defendant that
“absent the error[,] the jury probably would have reached a different verdict.” State
v. Bell, 166 N.C. App. 261, 263, 602 S.E.2d 13, 14 (2004) (citing Odom, 307 N.C. at
661, 300 S.E.2d at 378–79).
Here, Defendant argues the trial court should have instructed the jury as to
both assault inflicting serious bodily injury and its lesser included offense of assault
inflicting serious injury. “The trial court may refrain from submitting [a] lesser
offense to the jury only where the evidence is clear and positive as to each element of
the offense charged and no evidence supports a lesser[]included offense.” State v.
Tillery, 186 N.C. App. 447, 450, 651 S.E.2d 291, 294 (2007). However, “[a] judge
presiding over a jury trial must instruct the jury as to a lesser included offense of the
crime charged where there is evidence from which the jury could reasonably conclude
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that the defendant committed the lesser included offense.” State v. McConnaughey,
66 N.C. App. 92, 95, 311 S.E.2d 26, 28–29 (1984) (citing State v. Wallace, 309 N.C.
141, 145, 305 S.E.2d 548, 551 (1983)).
If there is some evidence in the record that supports a lesser degree of offense
than the one charged, the defendant is entitled to have all applicable lesser offenses
submitted to the jury as alternate verdicts. State v. Palmer, 293 N.C. 633, 643–44,
239 S.E.2d 406, 413 (1977). When a trial court fails to do so, “it cannot be known
whether the jury would have convicted [the] defendant of the lesser offense” and the
defendant is entitled to a new trial, even if the jury found the defendant guilty of the
greater offense. Id. at 644, 239 S.E.2d at 413; State v. Whitaker, 316 N.C. 515, 520,
342 S.E.2d 514, 518 (1986).
A failure to instruct a jury as to a lesser included offense may rise to plain error
only if the defendant can show sufficient prejudice. State v. Demick, 288 N.C. App.
415, 434, 886 S.E.2d 602, 617 (2023). To show sufficient prejudice, the defendant
must show the elements of the lesser offense are “essential elements of the greater
crime[]” and the jury “would have reached a different result had it received
instruction” on the lesser offense. Id. at 434, 437, 886 S.E.2d at 617, 618; State v.
Nickerson, 365 N.C. 279, 282, 715 S.E.2d 845, 847 (2011). However, if the State
offered “overwhelming evidence” of guilt as to the greater offense and the defendant
failed to rebut the State’s evidence, or introduce conflicting evidence as to severity,
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this Court will not find sufficient prejudice to establish plain error. Demick, 288 N.C.
App. at 437, 715 S.E.2d at 847.
Further, a defendant is not entitled to a lesser included offense instruction
merely by asserting the jury could possibly believe only some of the State’s evidence.
See State v. Annadale, 329 N.C. 557, 568, 406 S.E.2d 837, 844 (1991) (“If the evidence
is sufficient to fully satisfy the State’s burden of proving each and every element of
the offense . . . , and there is no evidence to negate these elements other than [the]
defendant’s denial that he committed the offense, the trial judge should properly
exclude from jury consideration the possibility of a conviction of [a lesser included
offense].”).
Here, the parties agree assault inflicting serious injury is a lesser included
offense contained within assault inflicting serious bodily injury. The trial court did
not instruct the jury as to assault inflicting serious injury. Assuming arguendo the
trial court’s failure to instruct the jury as to the lesser included offense was error, we
hold Defendant cannot show he was prejudiced by the error.
To establish prejudice, Defendant argues the jury could have reasonably found
the State met the definition of serious injury, but not serious bodily injury. Defendant
looks to Jennifer’s medical records which show Jennifer suffered neither a skull
fracture nor brain bleeding, and Jennifer’s ankle healed. Defendant further claims
Jennifer was “exaggerating her injuries” and the jury did not “believe much of
[Jennifer]’s testimony” because it acquitted Defendant on all other charges. As a
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result, Defendant argues the jury would have probably convicted Defendant of
assault inflicting serious injury instead of assault inflicting serious bodily injury had
the jury had the opportunity to do so.
In State v. Williams, this Court affirmed the defendant’s conviction of assault
inflicting serious bodily injury, holding a reasonable juror would have found the
victim’s injuries created a “protracted condition that cause[d] extreme pain.” State v.
Williams, 150 N.C. App. 497, 504, 563 S.E.2d 616, 620 (2002) (brackets in original).
The jury relied on evidence which showed the victim suffered a broken jaw which was
wired shut for two months, broken ribs, visits to the emergency room, and pain
persisting until the trial. Id. at 503, 563 S.E.2d at 620. This Court, viewing the
evidence in the light most favorable to the State, found the evidence sufficient to
establish “serious bodily injury” under section 14-32.4. Id. Thus, the State can meet
its burden of proving serious bodily injury by offering evidence which tends to show
a victim’s injuries have long-lasting effects. Id.
Here, the State’s evidence tended to show Jennifer was “dragged down the road
while holding onto the vehicle [Defendant] was driving[;]” Jennifer suffered a head
injury, broken bones, and permanent disfigurement; and Jennifer underwent four
surgeries to repair her ankle. The State presented this evidence through both expert
testimony and Jennifer’s medical records. Dr. Zuniga testified it would take
approximately six to eight weeks for Jennifer to fully heal and Jennifer also continued
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to suffer lingering pains from the assault until the trial was held. Defendant did not
offer his own evidence to disprove the State’s evidence.
Like Williams, the State in this case overwhelmingly met its burden of proving
serious bodily injury because Jennifer suffered a “protracted condition” which caused
extreme pain. Williams, 150 N.C. App. at 504, 563 S.E.2d at 620. We are not
convinced the jury would have convicted Defendant of the lesser charge, and not the
greater, had the jury been instructed as to the lesser charge. See Odom, 307 N.C. at
661, 300 S.E.2d at 378–79. Because the State met its burden, and because Defendant
failed to rebut the State’s evidence or put on evidence of his own, Defendant cannot
show sufficient prejudice to amount to plain error. Demick, 288 N.C. App. at 437, 715
S.E.2d at 847.
B. Rule 403 Substantial Prejudice
Defendant next argues the trial court improperly admitted evidence under
Rule 403 of the North Carolina Rules of Evidence. Specifically, Defendant argues the
admission of the video of the prior domestic violence incident involving a sword was
“incendiary” and “inflame[d] the passions of the jury.” Defendant further argues the
video evidence was unnecessarily cumulative and “created a danger that the jury
would decide the case on improper emotional grounds.”
This Court reviews the admissibility of evidence under Rule 403 for abuse of
discretion. State v. Summers, 177 N.C. App. 691, 697, 629 S.E.2d 902, 907 (2006).
An abuse of discretion occurs when a trial judge’s ruling is “manifestly unsupported
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by reason and could not have been the result of a reasoned decision.” State v. Riddick,
315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986) (internal quotations omitted). If the
evidence challenged involved a prior bad act under Rule 404(b), we must conduct a
two-prong analysis. State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159
(2012). First, we review de novo whether the evidence falls within the coverage of
Rule 404(b). Id. Second, we review the trial court’s determination to admit under
Rule 403 for abuse of discretion. Id.
Here, both parties agree the testimonial and video evidence was relevant
evidence under Rule 404. From our own examination of the record, we hold the
evidence was admissible because it falls within the scope of Rule 404(b) to show intent
and absence of mistake. See id. Thus, we turn to abuse of discretion under Rule 403.
“[A]lthough relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. R. Evid. 403. “‘Unfair prejudice,’ as used
in Rule 403, means ‘an undue tendency to suggest decision on an improper basis,
common, though not necessarily, as an emotional one.’” State v. DeLeonardo, 315
N.C. 762, 772, 340 S.E.2d 350, 357 (1986). To exclude evidence under Rule 403, a
party must show unfair prejudice substantially outweighs the probative value of the
evidence. State v. Lyons, 340 N.C. 646, 669, 459 S.E.2d 770, 782 (1995). “The test for
excess is not formulaic: there is no bright line indicating at what point the number of
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crime scene . . . photographs becomes too great.” State v. Hennis, 323 N.C. 279, 285,
372 S.E.2d 523, 527 (1988). If published evidence “add[s] nothing to the State’s case,
then its probative value is nil, and nothing remains but its tendency to prejudice.”
Id. at 286, 372 S.E.2d at 527 (quoting State v. Temple, 302 N.C. 1, 14, 273 S.E.2d 273,
281 (1981) (internal quotations omitted)).
In State v. Jones, the defendant argued admitting evidence of a prior breaking
and entering offense was inadmissible under Rule 403 because “utilizing multiple
types of evidence—testimony, court records and videos—was needlessly cumulative
and unnecessary[.]” State v. Jones, 288 N.C. App. 175, 184, 884 S.E.2d 782, 791
(2023). During the trial, the defendant admitted to a prior instance of breaking and
entering. Id. at 177, 884 S.E.2d at 787. The State, when conducting voir dire of its
witness, sought to introduce surveillance video of the prior breaking and entering.
Id. at 177–78, 884 S.E.2d at 787. The defendant objected to the video’s admission on
authentication grounds and on grounds the prior offense was “highly prejudicial and
had a very limited probative nature.” Id. at 178, 884 S.E.2d at 787. The defendant
failed to object on grounds the evidence was unnecessarily cumulative under Rule
403. Id. (internal quotations omitted). The trial court overruled the authentication
objection and allowed the video evidence without characterization by either the State
or the witness. Id. at 178, 884 S.E.2d at 787. On appeal, the defendant argued the
video evidence was needlessly cumulative and inadmissible under Rule 403. Id. at
184, 884 S.E.2d at 791. This Court dispensed the needlessly cumulative argument
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for failure to preserve and addressed only the remaining Rule 403 argument. Id. at
186, 884 S.E.2d at 793.
This Court held, when reviewing admissibility under Rules 404(b) and 403, we
must determine whether the trial court “first heard the testimony of the 404(b)
witness outside the presence of the jury[;] excluded testimony about any incidents
without sufficient similarity; and gave limiting instructions to the jury.” Id. at 185,
884 S.E.2d at 792 (internal quotations omitted). This determination requires us to
consider whether the Rule 404(b) evidence was sufficiently similar and not too remote
in time to the underlying facts. Id. at 184, 884 S.E.2d at 791; Beckelheimer, 366 N.C.
at 133, 726 S.E.2d at 160. If the Rule 404(b) evidence is sufficiently similar and
temporally proximate, we then review for abuse of discretion whether the trial court
“careful[ly] handl[ed] the process” by considering the potential danger of unfair
prejudice to the defendant. Jones, 288 N.C. App. at 186, 884 S.E.2d at 792. We held
the trial court did not abuse its discretion by admitting the evidence under Rule 403
because it conducted a voir dire of the investigating officer outside the presence of the
jury and gave the jury a limiting instruction that “explicitly told the jury the purposes
for which they could consider the prior . . . incident and warned them they could not
consider it for any other purpose.” Id. at 185–86, 882 S.E.2d at 792.
Here, Defendant, like the defendant in Jones, argues the presentation of the
same evidence through both witnesses and published video evidence was needlessly
cumulative. See id. at 184, 884 S.E.2d at 791. Also like Jones, Defendant failed to
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preserve this issue by timely objection. See id. at 186, 884 S.E.2d at 793. Accordingly,
we decline to review Defendant’s cumulative evidence argument. Id. at 184, 884
S.E.2d at 791.
Defendant also argues the video evidence was “disproportionate to its
probative value” because it “primed the jury to decide the case on an improper basis:
an emotional one.” Accordingly, we must review whether the evidence was
sufficiently similar and temporally proximate to the case sub judice. See id. at 186,
884 S.E.2d at 792. We hold the evidence is sufficiently similar to the underlying facts
because it involves the same parties, involved similar violent conduct of Defendant,
and occurred only a year prior to the underlying facts. Further, the trial court
carefully handled the evidentiary process because it considered the potential danger
of undue prejudice to Defendant outside the presence of the jury and gave a specific
limiting instruction. See id. Accordingly, we hold the trial court did not abuse its
discretion by admitting the video evidence under Rule 403. See id.
III. Conclusion
The trial court did not plainly err by omitting jury instructions on a lesser
included offense and did not err by admitting evidence under Rule 403.
NO PLAIN ERROR IN PART AND NO ERROR IN PART.
Panel consisting of Judges STROUD, COLLINS, and GRIFFIN.
Report per Rule 30(e).
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