State v. Sims

• Court: Court of Appeals of North Carolina
• Decided: June 3, 2026
• Docket: 25-1
• Status: Unpublished
• Author: Judge Jeff Carpenter

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA25-1

Filed 3 June 2026

Guilford County, No. 22CR334334-400

STATE OF NORTH CAROLINA

v.

LAQUITA LANETT SIMS, Defendant.

Appeal by Defendant from judgment entered 22 September 2023 by Judge R.

Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals

24 September 2025.

Attorney General Jeff Jackson, by Special Deputy Attorney General Matthew Tulchin, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for Defendant-Appellant.

CARPENTER, Judge.

Laquita Lanett Sims (“Defendant”) appeals from judgment entered after a jury

found her guilty of one count of misdemeanor engaging in a riot. On appeal,

Defendant argues the trial court erred by denying her motion to dismiss. After

careful review, we discern no error. STATE V. SIMS

Opinion of the Court

I. Factual & Procedural Background

On 3 November 2022, Defendant was charged by magistrate’s order with felony

inciting a riot based on injury to a person, disorderly conduct at a school, second-

degree trespass, assault upon a school employee, simple assault, and contributing to

the delinquency of a juvenile. On 4 August 2023, the district court found Defendant

guilty of all charges. The district court sentenced Defendant to consecutive 120-day

periods of imprisonment, suspended for twelve months. Defendant appealed to

superior court. The superior court corrected a clerical error on the magistrate’s order

by reducing the felony riot charge to a misdemeanor and joined Defendant’s case with

the case of her sister, Demorshea Sims. Before the trial, Defendant objected to the

difference between the charging document and the corrected clerical error, which the

trial court overruled. On 20 September 2023, the superior court conducted a trial,

and the evidence tended to show the following.

Defendant has two daughters, Andrea and Atianna, who are high school

students in Guilford County. On 3 November 2022, a teacher at the school observed

Defendant and Demorshea “standing kind of to the side of the breezeway waiting for

somebody or something.” While the teacher was watching, Andrea arrived and

guided her family toward a media center.

After following the group, the teacher observed “basically two sets -- like, two

fights kind of individually happening, two sets of girls.” One set of girls included

-2- STATE V. SIMS

Andrea and Jayla, another student at the high school. The second set of girls included

Jayla’s older sister, Jasmine, and Atianna.

The teacher “went in to try and help break up the fight,” but she was “removed

by [Defendant] and shoved back onto the [brick] planter [divider].” During the fights,

Defendant told Andrea to “[g]o at [Jayla] again.” Defendant also instructed Atianna

that “[i]f your sister fights, you fight.” The teacher said it took “five to ten” faculty

and staff members to stop the fights.

After the State rested its case, Defendant moved to dismiss all charges. The

trial court dismissed the charge of second-degree trespass. At the close of all

evidence, Defendant renewed her motion to dismiss, which the trial court granted as

to the disorderly conduct charge. On 22 September 2023, the jury found Defendant

guilty of misdemeanor engaging in a riot and not guilty of the remaining offenses.

The trial court sentenced Defendant to 120 days of imprisonment. On 26 September

2023, Defendant filed written notice of appeal.

II. Jurisdiction

This Court has jurisdiction under N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-

1444(a) (2025).

III. Issue

The issue is whether the trial court erred by denying Defendant’s motion to

dismiss the misdemeanor engaging in a riot charge.

IV. Analysis

-3- STATE V. SIMS

A. Standard of Review

“This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).

“ ‘Under a de novo review, the court considers the matter anew and freely substitutes

its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628,

632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd. P’ship, 356

N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

B. Motion to Dismiss

“ ‘Upon defendant’s motion for dismissal, the question for the Court is whether

there is substantial evidence (1) of each essential element of the offense charged, or

of a lesser offense included therein, and (2) of defendant’s being the perpetrator of

such offense. If so, the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373,

378, 526 S.E.2d 451, 455 (2000) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d

114, 117 (1980)). “ ‘Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’ ” Smith, 186 N.C. App. at

62, 650 S.E.2d at 33 (quoting State v. Cummings, 46 N.C. App. 680, 683, 265 S.E.2d

923, 925 (1980)). “In making its determination, the trial court must consider all

evidence admitted, whether competent or incompetent, in the light most favorable to

the State, giving the State the benefit of every reasonable inference and resolving any

contradictions in its favor.” State v. Rose, 339 N.C. 172, 192–93, 451 S.E.2d 211, 223

(1994) (citation omitted).

-4- STATE V. SIMS

1. Insufficient Evidence

Defendant first argues that the trial court erred by failing to dismiss her

charge of engaging in a riot because the State failed to present sufficient evidence

tending to show that her involvement in the fight constituted “active participation.”

We disagree.

For one to engage in a riot, “active participation” is required, State v. Mitchell,

110 N.C. App. 250, 254, 429 S.E.2d 580, 582 (1993), which is something more than

“mere presence at the scene” without overt acts, see State v. Riddle, 45 N.C. App. 34,

37–38, 262 S.E.2d 322, 324–25 (1980). For example, a person actively participates in

a riot through disorderly conduct when the person “[m]akes or uses any utterance,

gesture, display or abusive language which is intended and plainly likely to provoke

violent retaliation and thereby cause a breach of the peace.” N.C. Gen. Stat. § 14-

288.4(a)(2) (2025). A person also actively participates by engaging in violent conduct

that could harm someone. See Riddle, 45 N.C. App. at 38, 262 S.E.2d at 325.

Here, the evidence tends to show Defendant actively participated in the fights.

See Mitchell, 110 N.C. App. at 254, 429 S.E.2d at 582. Defendant engaged in violent

conduct by pushing one teacher into a brick planter. See Riddle, 45 N.C. App. at 38,

262 S.E.2d at 325. Defendant also instructed Andrea to “[g]o at [Jayla] again[]” and

told Atianna that “[i]f your sister fights, you fight.” Defendant’s provocative

language, therefore, was likely to incite Andrea and Atianna to violence. See N.C.

Gen. Stat. § 14-288.4(a)(2). As such, viewing the evidence in the light most favorable

-5- STATE V. SIMS

to the State, see Rose, 339 N.C. at 192–93, 451 S.E.2d at 223, Defendant actively

participated in a riot, see Mitchell, 110 N.C. App. at 254, 429 S.E.2d at 582.

Accordingly, the trial court did not err in denying her motion to dismiss the

misdemeanor charge of engaging in a riot. See Fritsch, 351 N.C. at 378, 526 S.E.2d

at 455.

2. Fatal Variance

Defendant next contends the trial court erred by failing to dismiss her charge

of engaging in a riot because of a fatal variance between the charging instrument and

the evidence presented at trial. Specifically, she asserts that the magistrate’s order

alleged she engaged in a riot based on injury to persons whereas the trial evidence

showed only risk of injury. We disagree.

A defendant properly preserves a fatal variance argument by making a general

motion to dismiss. See State v. Juran, 294 N.C. App. 81, 85, 901 S.E.2d 872, 876

(2024). Thus, because Defendant made a motion to dismiss, she preserved her fatal

variance argument. See id. at 85, 901 S.E.2d at 876.

“ ‘A variance between the criminal offense charged and the offense established

by the evidence is in essence a failure of the State to establish the offense charged.’ ”

State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997) (quoting State v.

Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971)). “The determination of

whether a fatal variance exists turns upon two policy concerns, namely, (1) insuring

that the defendant is able to prepare his defense against the crime with which he is

-6- STATE V. SIMS

charged and (2) protect[ing] the defendant from another prosecution for the same

incident.” Juran, 294 N.C. App. at 83, 901 S.E.2d at 875 (quoting State v. Glidewell,

255 N.C. App. 110, 113, 804 S.E.2d 228, 232 (2017)).

Thus, a trial court may grant a motion to dismiss for fatal variance “ ‘when the

prosecution fails to offer sufficient evidence [that] the defendant committed the

offense charged.’ ” State v. Tarlton, 279 N.C. App. 249, 253, 864 S.E.2d 810, 813

(2021) (quoting Pickens, 346 N.C. at 646, 488 S.E.2d at 172). To do so, “the variance

‘must be material, meaning it must involve an essential element of the crime

charged,’ and the defendant must establish [s]he suffered prejudice as a result.”

Juran, 294 N.C. App. at 83, 901 S.E.2d at 875 (quoting Glidewell, 255 N.C. App. at

113, 804 S.E.2d at 232). For example, if a defendant faces charges under the same

statute, the variance may not be fatal without sufficient evidence for the other crime.

See id. at 87, 901 S.E.2d at 877.

Under the statute for engaging in a riot, “[a] riot is a public disturbance

involving an assemblage of three or more persons which by disorderly and violent

conduct, or the imminent threat of disorderly and violent conduct, results in injury or

damage to persons or property or creates a clear and present danger of injury or

damage to persons or property.” N.C. Gen. Stat. § 14-288.2(a) (2025) (emphasis

added).

Here, even though the State failed to establish the offense charged in the

magistrate’s order, see Pickens, 346 N.C. at 646, 488 S.E.2d at 172, the variance was

-7- STATE V. SIMS

not prejudicial, see Juran, 294 N.C. App. at 83, 901 S.E.2d at 875. Defendant faced

charges under the same statute regardless of whether she caused injury or created a

clear and present danger of injury. See id. at 87, 901 S.E.2d at 877; N.C. Gen. Stat.

§ 14-288.2(a). Thus, the magistrate’s order sufficiently noticed Defendant of the

charge to prepare a defense. See Juran, 294 N.C. App. at 83, 901 S.E.2d at 875.

Moreover, because the charge was under the same statute regardless of the existence

of an injury, Defendant could not face a second prosecution. See id. at 83, 901 S.E.2d

at 875. Defendant, therefore, has failed to show prejudice because of the variance.

See id. at 83, 901 S.E.2d at 875. Accordingly, the trial court did not err in denying

her motion to dismiss. See Tarlton, 279 N.C. App. at 253, 864 S.E.2d at 813.

V. Conclusion

In sum, we conclude that substantial evidence supports each element of

engaging in a riot, and no fatal variance exists between the allegations in the

charging instrument and the evidence. Accordingly, the trial court did not err by

denying Defendant’s motion to dismiss.

NO ERROR.

Judges TYSON and STADING concur.

Report per Rule 30(e).

-8-