State v. Stephens

• Court: Court of Appeals of North Carolina
• Decided: March 4, 2026
• Docket: 25-685
• Status: Unpublished
• Author: Judge Christopher Freeman

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA25-685

Filed 4 March 2026

Sampson County, Nos. 20CR515554-810, 20CR051553-810

STATE OF NORTH CAROLINA

v.

ANTWAN L. STEPHENS

Appeal by defendant from judgment entered 8 March 2023 by Judge Henry L.

Stevens in Sampson County Superior Court. Heard in the Court of Appeals 11

February 2026.

Attorney General Jeff Jackson, by Assistant Attorney General Karissa J. Davan, for the State.

W. Michael Spivey for defendant.

FREEMAN, Judge.

Defendant appeals from judgment entered upon a jury verdict of guilty on

three charges of discharging a weapon into an occupied vehicle in operation. On

appeal, defendant argues the trial court erred in denying his motion to dismiss two

of the three counts of discharging a weapon into an occupied vehicle in operation.

Defendant also argues the trial court erred in instructing the jury that each separate STATE V. STEPHENS

Opinion of the Court

shot was a separate offense. After careful review, we hold that defendant received a

fair trial free from prejudicial error.

I. Factual and Procedural Background

The evidence presented at trial tended to show the following. Defendant and

Jacinda Joyner had a long dating relationship, and Joyner’s mother testified that

“they couldn’t get along” at times. On the night of 17 August 2020, Joyner spent time

with Edward Best and left her car in a parking lot overnight. Defendant and Best

attended school together and had known each other for thirty years.

On the morning of 18 August 2020, Joyner and Best returned to the parking

lot, discovered Joyner’s license plate was missing from her car, and contacted the

police. Joyner subsequently learned her mother had the plate and informed the

officers. The officers allowed Best to drive behind Joyner to her mother’s house

because she did not have a license plate. However, the pair were separated at a left-

hand turn due to traffic, so by the time Best drove up to Joyner’s mother’s house on

Jacobs Street, he saw Joyner getting into her car and leaving quickly. Best never

stopped his vehicle, but he noticed defendant’s red Nissan Altima in the yard.

Best saw defendant move quickly to his car, obtain a chrome handgun, and fire

into Best’s moving car. Relevant on appeal, Best testified defendant shot three or

four times at the passenger side and rear of the car as he sped by. One bullet went

into a tire, and another went through the car and lodged into the back of the driver’s

seat. Joyner’s mother heard gunshots and called 911.

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Defendant drove after Best, so Best called 911 to report the situation and went

to the Sampson County Sheriff’s Office for safety. Best told sheriff’s deputies that

defendant shot at him on Jacobs Street. Deputies instructed Best to wait for the

Clinton Police to handle the report.

Clinton Police officers responded to the “shots fired” call on Jacobs Street and

found three nine-millimeter shell casings. The police officers then drove to the

sheriff’s station and spoke to Best, who was “very shook up” and “frantic.” Best’s car

had four bullet holes and a flat tire. The bullet holes were located in the passenger

side front quarter panel, rear bumper by the tailpipe, rear license plate, and back

right rear of the car.

On 2 November 2020, defendant was indicted on the charges of possession of a

firearm by a felon and three counts of discharging a weapon into an occupied vehicle

in operation. Defendant’s matter came on for trial on 6 March 2023. Defendant

moved to dismiss two of the charges of discharging a weapon into an occupied vehicle

in operation at the close of the State’s evidence and renewed his motion at the close

of all evidence, but the trial court denied these motions.

The trial court and the attorneys then discussed and agreed on the jury

instructions, which were finalized without objection. The trial court instructed the

jury:

The defendant has been charged with three separate counts of discharging a firearm into an occupied vehicle while in operation, alleging at least three, distinct offenses.

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Each separate shot constitutes a separate offense. For each alleged offense of discharging a firearm into an occupied vehicle while in operation, the jury will consider whether the defendant committed a distinct offense. In other words, the jury will consider whether an offense of discharging a firearm into an occupied vehicle in operation was committed, and if so, whether it was committed once, twice, or three times.

The trial court defined each of the four elements of discharging a firearm into an

occupied vehicle in operation. The trial court also instructed the jury, in relevant

part, “You should not infer from anything that I have done or said that the evidence

is to be believed or disbelieved, that a fact has been proven, or what your findings

ought to be.”

On 8 March 2023, the jury found defendant guilty on all charges. The trial

court sentenced defendant to a consolidated sentence of 128 to 166 months’

imprisonment.

Defendant did not give timely notice of appeal. Defendant filed a petition for

writ of certiorari on 19 December 2023. On 26 February 2024, this Court granted

defendant’s petition to review the 8 March 2023 judgment.

II. Jurisdiction

This Court may issue a writ of certiorari to review judgments of trial courts

“when the right to prosecute an appeal has been lost by failure to take timely

action[.]” N.C. R. App. P. 21(a) (2023); see also N.C.G.S. § 7A-32(c) (2025) (providing

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this Court may issue “prerogative writs” to aid our jurisdiction). Accordingly, we

possess jurisdiction over defendant’s appeal.

III. Standard of Review

“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. Bradsher, 382 N.C. 656, 658 (2022) (cleaned up). Because

we review alleged statutory errors de novo, State v. Mackey, 209 N.C. App. 116, 120

(2011), and expressions of judicial opinion are governed by sections 15A-1222 and

15A-1232 of our General Statutes, we review alleged expressions of judicial opinion

de novo, State v. Chavis, 278 N.C. App. 482, 487 (2021). See also N.C.G.S §§ 15A-

1222, 15A-1232 (2025). Generally, we review unpreserved issues for plain error. N.C.

R. App. P. 10(a)(4) (2023); see State v. Lawrence, 365 N.C. 506, 516 (2012) (stating

that “plain error review in North Carolina is normally limited to instructional and

evidentiary error”).

IV. Discussion

Defendant contends the trial court erred by denying his motion to dismiss two

of the three counts of discharging a firearm into an occupied vehicle in operation. In

the alternative, defendant argues that during jury instructions, the trial court

expressed an impermissible opinion and incorrectly stated the law. We address each

argument in turn.

A. Motion to Dismiss

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Defendant argues the trial court erred by denying his motion to dismiss two of

the three counts of discharging a firearm into an occupied vehicle in operation

because the State failed to offer substantial evidence for each element of each charged

offense. Defendant contends the State’s evidence was insufficient to support three

separate and distinct acts of intentionally firing a weapon.

“The question for a court on a motion to dismiss for insufficient evidence 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.” Bradsher, 382 N.C. at 658 (cleaned up). “Substantial

evidence is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion[,]” State v. Smith, 300 N.C. 71, 78–79 (1980), and “is the same

as more than a scintilla of evidence[,]” Bradsher, 382 N.C. at 658. “In reviewing

challenges to the sufficiency of evidence, we must view the evidence in the light most

favorable to the State, giving the State the benefit of all reasonable inferences.”

Bradsher, 382 N.C. at 658 (citation omitted).

Any person who willfully or wantonly discharges or attempts to discharge any firearm or barreled weapon capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second . . . into any occupied vehicle . . . that is in operation is guilty of a Class D felony.

N.C.G.S. § 14-34.1(a)–(b) (2025). A defendant willfully or wantonly discharges a

firearm into an occupied, moving vehicle if they intentionally pull the trigger to

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discharge the firearm “with the knowledge or reasonable grounds to believe” doing so

would endanger others. State v. McLean, 211 N.C. App. 321, 330 (2011). A defendant

commits separate acts of discharging a firearm if they must “employ [their] thought

processes” each time they fire the weapon. State v. Rambert, 341 N.C. 173, 176–77

(1995). Multiple counts of discharging a firearm into an occupied vehicle in operation

are supported by evidence showing each shot fired from a non-automatic weapon “was

distinct in time, and each bullet hit the vehicle in a different place.” Id.

In State v. Rambert, our Supreme Court upheld three counts of discharging a

firearm into occupied property where “the evidence clearly show[ed] that [the]

defendant was not charged three times with the same offense for the same act but

was charged for three separate and distinct acts.” Id. at 176. The Court reasoned

each shot the defendant fired from a pistol was a separate and distinct act that

required the defendant to “employ his thought processes each time he fired the

weapon.” Id. at 176–77. Moreover, the State need not identify the exact weapon or

“nature of its firing mechanism,” only that it was not firing on automatic, requiring a

separate trigger pull for each shot. State v. Morrison, 272 N.C. App. 656, 668 (2020).

In Morrison, for example, this Court held that witness testimony describing the

weapon and the sound and timing of gunfire was sufficient to conclude that the

weapon “was not firing on automatic.” Id. at 666–69.

Physical evidence may also support the conclusion that the defendant

committed separate acts when firing into an occupied vehicle in operation. Our

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Supreme Court has used the existence and location of bullet holes on the vehicle to

hold that the separate shots were separate offenses. E.g., State v. Nobles, 350 N.C.

483, 505 (1999). For example, in Nobles, the evidence showed multiple bullet holes

in different places on the vehicle: the middle of the windshield; the windshield on the

passenger’s side; below the windshield on the driver’s side; the driver’s side headlight;

the top of the truck; the bed of the truck; and the driver’s side window. Id. The Court

held the trial court did not err in denying the defendant’s motion to dismiss

“additional charges” of discharging a weapon into an occupied vehicle, where the

physical evidence supported the conclusion that the defendant committed separate

acts. Id.

Defendant maintains that the State’s evidence failed to show the shots were

not discharged in a single act with one trigger pull. Further, defendant argues the

bullet holes’ placements only establish that the shots were fired from a position where

they could strike both the right side and rear of the car, not that they were fired at

distinct times.

However, the State’s evidence tended to show that defendant fired a semi-

automatic weapon, not an automatic weapon, three distinct times, and employed his

thought processes for each shot that entered the occupied vehicle in different places.

Best testified he saw defendant firing a chrome pistol and described at least three

distinct shots that hit his car in different places. The investigating officer testified to

the separate locations of three shell casings that came from a nine-millimeter pistol

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on the street where shots were fired. The officer also testified that the four bullet

holes were in separate locations on the vehicle. This evidence, taken together, is

“more than a scintilla of evidence” to support that defendant committed three

separate acts. See Bradsher, 382 N.C. at 658. Accordingly, the trial court did not err

in denying defendant’s motion to dismiss two of the three counts of intentionally

discharging a weapon into an occupied vehicle in operation.1

B. Trial Court’s Statement During Jury Instructions

Alternatively, defendant challenges the trial court’s statement, “Each separate

shot constitutes a separate offense,” during jury instructions. Defendant argues that

the trial court’s statement was erroneous because it was an expression of

impermissible opinion, and that it constituted plain error because it was an incorrect

statement of the law.

1. Impermissible Opinion

Defendant maintains that the trial court’s statement expressed an

impermissible opinion—that the State had proved each shot was a separate act, and

that it relieved the State’s burden of proving each element of each offense.

The trial court “may not express during any stage of the trial, any opinion in

1 To the extent defendant argues that the multiple charges raise double jeopardy concerns,

because there is substantial evidence defendant committed three separate offenses of discharging a weapon into an occupied vehicle in operation, this argument is without merit. See Rambert, 341 N.C. at 175–77 (holding the defendant was not placed in double jeopardy where the evidence supported charges for three separate and distinct acts).

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the presence of the jury on any question of fact to be decided by the jury.” N.C.G.S.

§ 15A-1222. “In instructing the jury, the judge shall not express an opinion as to

whether or not a fact has been proved . . . .” N.C.G.S. § 15A-1232. An improper

expression of opinion by the trial court violates sections 15A-1222 and 15A-1232 of

our General Statutes, and “the error is preserved for review without objection due to

the mandatory nature of these statutory prohibitions.” State v. Austin, 378 N.C. 272,

276 (2021) (cleaned up). “When an alleged statutory violation by the trial court is

properly preserved, . . . we review for prejudicial error pursuant to N.C.G.S.

§ 15A-1443(a).” Id. at 276–77. Section 15A-1443(a) states,

A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when 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. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.

N.C.G.S. § 15A-1443(a) (2025) (emphasis added).

“When reviewing alleged improper expressions of judicial opinion under this

[reasonable possibility] standard, we utilize a totality of the circumstances test to

determine whether the trial court’s comments crossed into the realm of impermissible

opinion.” Austin, 378 N.C. at 277 (cleaned up). An alleged improper remark by the

trial court is not reviewed in isolation and is not grounds for a new trial when,

considering the circumstances under which it was made, “it could not have prejudiced

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the defendant’s case.” Id. at 278 (cleaned up). “The bare possibility that an accused

may have suffered prejudice from the conduct or language of the judge is not sufficient

to overthrow an adverse verdict.” Id. (cleaned up). Even where a statement is “less

than exemplary,” where a trial court “edit[s] his [or her] own comments” and makes

efforts “to maintain progress and proper decorum” in the proceedings, a defendant

will have to show prejudice as a result of the trial court’s statements. State v.

Larrimore, 340 N.C. 119, 155 (1995) (cleaned up).

An alleged impermissible expression of opinion in jury instructions will not be

prejudicial if the entire context makes clear the jury was not misled. See State v.

Alston, 249 N.C. 577, 594 (1978) (“[A]ppellate review of the trial court instructions . .

. will be read contextually and an excerpt will not be held prejudicial if a reading of

the whole charge leaves no reasonable grounds to believe that the jury was misled.”).

In State v. Austin, for example, the defendant argued the trial court expressed an

impermissible opinion that an assault had occurred during jury instructions. 378

N.C. at 275. However, the trial court also instructed the jury, “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.” Id. at 279. Because

the State’s evidence at trial was sufficient for the jury to determine whether the

elements of the charge were met, and the instructions were clear that the jury alone

was to make that determination, our Supreme Court held that the trial court did not

prejudicially err by expressing an opinion. Id. at 280.

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Here, the trial court said, “Each separate shot constitutes a separate offense.”

Presuming without deciding that this was an improper statement—when considered

under the totality of the circumstances—this statement did not amount to a

prejudicial error. Further, the statement did not relieve the State of its burden to

prove each element of each charged offense. The statement was followed by a

thorough explanation that “the jury will consider whether an offense of discharging

a firearm into an occupied vehicle in operation was committed, and if so, whether it

was committed once, twice, or three times.”

The trial court also explained the State must prove four things beyond a

reasonable doubt for the jury to find defendant guilty of each separate charged

offense: (1) defendant willfully and wantonly discharged a firearm into a vehicle at

least once for each charged offense; (2) the vehicle was occupied by one or more

persons; (3) defendant knew or had reasonable grounds to believe the vehicle was

occupied; and (4) the vehicle was in operation. Furthermore, the trial court instructed

the jury it “should not infer from anything that I have done or said that the evidence

is to be believed or disbelieved, that a fact has been proven, or what your findings

ought to be.” Thus, in context, the trial court explained every element of the offenses

and specified that the jury alone must determine whether defendant committed

distinct offenses.

Like in Austin, a review of the totality of circumstances—including the trial

court’s clear and robust instructions and the evidence presented at trial—

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demonstrates defendant was not prejudiced by the trial court’s statement. See 378

N.C. at 280. Absent the alleged improper remark, there was no reasonable possibility

the jury would have reached a different result. Therefore, the trial court’s statement

resulted in no prejudicial error.

2. Jury Instruction

Defendant also argues the trial court’s statement during jury instruction

constituted plain error because it was a misstatement of the law. See N.C. R. App. P.

10(a)(4) (“[A]n issue that was not preserved . . . may be made the basis of an issue

presented on appeal when the judicial action questioned is specifically and distinctly

contended to amount to plain error.”).

No portion of the jury instructions may be made “the basis of an issue on

appeal” unless the party timely objects. N.C. R. App. P. 10(a)(2) (2023). “Without an

objection, that error is deemed unpreserved, and the issue is therefore waived on

appeal.” State v. Reber, 386 N.C. 153, 157 (2024). “Plain error exists for the rare

cases where the harshness of this preservation rule vastly outweighs its benefits.”

Id. at 158. Our Supreme Court held that plain error review “is reserved for grave

error which amounts to a denial of a fundamental right of the accused, and that it

focuses on error that has resulted in a miscarriage of justice or the denial of a fair

trial.” Id. (cleaned up). Plain error review is applied to unpreserved issues, “and it

requires the defendant to bear the heavier burden of showing that the error rises to

the level of plain error.” Lawrence, 365 N.C. at 516; see also N.C. R. App. P. 10(a)(4).

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Under plain error review, the defendant must satisfy a three-factor test:

First, the defendant must show that a fundamental error occurred at trial. Second, the defendant must show that the error had a probable impact on the outcome, meaning that absent the error, the jury probably would have returned a different verdict. Finally, the defendant must show that the error is an exceptional case that warrants plain error review, typically by showing that the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Reber, 386 N.C. at 158 (cleaned up).

“To show that an error was fundamental, a defendant must establish prejudice

. . . .” Lawrence, 365 N.C. at 518. “In determining whether an error was prejudicial,

our courts have examined the entire record to determine if the error had

a probable impact on the jury’s finding of guilt.” Id. at 517 (cleaned up) (emphasis in

original). To show, absent the alleged error, a different result was probable, this

standard “requires a showing that the outcome is significantly more likely than not.”

Reber, 386 N.C. at 159. “[A]n event will probably occur if it is almost certainly the

expected outcome . . . .” Id. (cleaned up). “For plain error to be found, it must be

probable, not just possible, that absent the instructional error the jury would have

returned a different verdict.” State v. Juarez, 369 N.C. 351, 358 (2016). Therefore,

the prejudice prong under plain error review is a higher standard than under

harmless error review. See Lawrence, 365 N.C. at 512, 516.

Here, the trial court and attorneys discussed and agreed upon the jury

instructions, and defendant did not object to the statement at trial. Thus, we review

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the trial court’s statement for plain error because defendant did not preserve the

issue at trial. See N.C. R. App. P. 10(a)(4); see also Lawrence, 365 N.C. at 516. For

the same reasons the trial court’s statement was not prejudicial under harmless error

review, it does not rise to the level of plain error. Defendant cannot show that the

statement possibly affected the outcome under the more lenient standard, so

defendant similarly cannot show that, absent the statement, there probably, or

“almost certainly,” would have been a different outcome. See Juarez, 369 N.C. at 358;

see also Reber, 386 N.C. at 159–60. Accordingly, the trial court did not plainly err in

its jury instructions.

V. Conclusion

For the foregoing reasons, we conclude that the trial court did not err in

denying defendant’s motion to dismiss and did not err in instructing the jury.

NO ERROR IN PART, NO PREJUDICIAL ERROR IN PART, NO PLAIN

ERROR IN PART.

Chief Judge DILLON and Judge FLOOD concur.

Report per Rule 30(e).

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