IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-523
Filed 18 February 2026
Scotland County, Nos. 21CR052104-820, 22CR000038-820, 22CR050183-820, 22CR050184-820
STATE OF NORTH CAROLINA
v.
RUSTY DEVON STRICKLAND
Appeal by defendant from judgments entered 8 November 2024 and 13 June
2025 by Judge Stephan R. Futrell in Scotland County Superior Court. Heard in the
Court of Appeals 28 January 2026.
Attorney General Jeff Jackson, by Assistant Attorney General Meghan E. Lock, for the State.
J. Hunter Murphy, for the defendant-appellant.
TYSON, Judge.
Rusty Devon Strickland (“Defendant”) appeals from judgments entered on a
jury’s verdicts finding him guilty of attempted first degree murder, assault with a
deadly weapon with intent to kill inflicting serious injury, assault on a female,
possession of a firearm by a felon, assault by strangulation, assault with a deadly
weapon in the presence of a minor, and communicating threats. Our review discerns
no error at trial. We vacate and remand the 8 November 2024 judgment for
resentencing and vacate the 13 June 2025 judgment. STATE V. STRICKLAND
Opinion of the Court
I. Background
Defendant; his wife, Nancy Caulder; and her four children lived in a “little
cottage” located behind Jeanette Herlocker’s home. Herlocker is Caulder’s mother.
Both residences were located on Herlocker’s family property.
Caulder went to Herlocker’s home around 10:00 am on 12 November 2021.
Caulder told Herlocker she wanted to leave Defendant. Herlocker noted Caulder
seemed anxious.
Herlocker told Caulder to bring her eight-year-old child up to her house to sit
with her housekeeper. Herlocker heard footsteps from her back deck. Defendant
entered the residence, went straight to Caulder, and the two began arguing.
Herlocker attempted to get Defendant and Caulder to go outside. Defendant pushed
Herlocker to the floor and punched her in the face. Herlocker received a black eye.
While Herlocker was on the floor, Defendant pulled out a handgun and pointed it at
her.
Defendant returned to his residence. Jamie Locklear, who was a handyman,
arrived on the property to work on the cottage. Herlocker and Locklear observed
Defendant taking firearms out of the cottage and placed them inside of a white van.
Defendant drove away.
Locklear observed Herlocker’s injured eye and called 911. Locklear took
Caulder’s four children to his home. When Caulder went to Locklear’s home to pick
up her children, Locklear heard Defendant’s voice on Caulder’s phone’s speaker
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saying he was going to kill Locklear and his wife and chop their baby’s head off.
Locklear went back to the property and cottage on 5 February 2022. Locklear
noticed the front door had been kicked in. Locklear also heard a child screaming
inside the cottage. Locklear entered the cottage and observed Caulder on the floor
being choked by Defendant. Caulder was turning blue in the face.
Defendant saw Locklear, pulled out and pointed a handgun at Locklear, who
fell backwards. Defendant fired multiple shots, and one round struck Locklear in the
leg. Defendant fled from the property. Locklear drove himself to the hospital for
treatment and required surgery for his gunshot wound.
Defendant was indicted for assault on a female, assault by pointing a gun, and
communicating threats for the 12 November 2021 crimes. Defendant was also
indicted for attempted first degree murder, assault with a deadly weapon with intent
to kill inflicting serious injury, communicating threats, assault by strangulation,
possession of a firearm by a felon, and two counts of assault with a deadly weapon in
the presence of a minor for the 5 February 2022 crimes.
Prior to trial, the State filed a motion on 19 January 2024 to join the offenses
at trial. The State asserted “the offenses are based on the same act or transaction or
on a series of transactions connecting together or constituting parts of a single scheme
or plan.” Defendant opposed the State’s motion, but withdrew his objection during
jury selection. All offenses were joined for trial on 4 November 2024.
The State entered a voluntary dismissal to one count of assault with a deadly
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weapon in the presence of a minor and one count of communicating threats. After
the State rested, Defendant moved to dismiss all charges, offered no evidence, and
did not testify.
The jury acquitted Defendant of assault by pointing a gun. Defendant was
convicted of attempted first degree murder, assault with a deadly weapon with intent
to kill inflicting serious injury, assault on a female, possession of a firearm by a felon,
assault by strangulation, assault with a deadly weapon in the presence of a minor,
and communicating threats.
The State presented the aggravating factor of committing the offense in the
presence of a minor on the attempted first degree murder, assault with a deadly
weapon with intent to kill inflicting serious injury, assault by strangulation, and
possession of a firearm by a felon. The jury found the existence of the aggravating
factor. See N.C. Gen. Stat. § 15A-1340.16(d)(13a) (2023).
Prior to sentencing Defendant’s counsel stipulated he was a prior record level
IV offender with 10 prior record level points. Defendant’s convictions for assault with
a deadly weapon with intent to kill inflicting serious injury was consolidated for
judgment with his conviction for attempted first degree murder, and he was
sentenced in the aggravated range to an active sentence of 275 to 342 months.
Defendant’s conviction for assault with a deadly weapon in the presence of a
minor, assault on a female, and communicating threats were consolidated for
judgment with his assault by strangulation conviction and he was sentenced in the
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aggravated range to an active sentence of 22 to 39 months. Defendant was sentenced
to an active sentence in the aggravated range of 22 to 39 months for his possession of
a firearm by a felon conviction. All sentences were to run consecutively. Defendant
gave oral notice of appeal. The trial court made appellate entries on 8 November
2024. The record on appeal was filed with this Court on 2 June 2025, and the case
was docketed.
The Department of Adult Corrections sent the trial court a letter identifying
concerns with Defendant’s sentences on 9 December 2024. The trial court issued a
Writ of Habeas Corpus Ad Prosequendum for Defendant to return to the trial court
for the correction of sentencing errors on 21 January 2025. Defendant never
appeared and the trial court did not resentence Defendant. The trial court issued a
subsequent Writ of Habeas Corpus Ad Prosequendum for Defendant to return to the
trial court for correction of sentencing errors on 9 June 2025.
The trial court conducted a new sentencing hearing on 13 June 2025.
Defendant’s counsel stipulated he was a prior record level III offender with 8 prior
record level points. Defendant’s conviction for assault with a deadly weapon with
intent to kill inflicting serious injury was consolidated for judgment with his
conviction for attempted first degree murder and he was sentenced in the aggravated
range to an active sentence of 230 to 288 months. Defendant was sentenced for his
conviction of possession of a firearm by a felon in the aggravated range to an active
sentence of 19 to 32 months. Defendant’s convictions for assault on a female and
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communicating threats were consolidated for judgment with his conviction for assault
by strangulation, and he was sentenced in the aggravated range to 11 to 23 months.
All sentences to run consecutively. The trial court arrested judgment on the
conviction for assault with a deadly weapon in the presence of a minor. Defendant
gave oral notice of appeal.
II. Jurisdiction
In addition to Defendant’s prior oral notices of appeal, Defendant has filed a
petition for writ of certiorari to review the judgments and sentences imposed by the
trial court on 13 June 2025. “The jurisdiction of the trial court with regard to the
case is divested . . . when notice of appeal has been given and the period described in
(1) and (2) has expired.” N.C. Gen. Stat. § 15A-1448(a)(3) (2023) (emphasis supplied).
Subsection (1) provides “the period provided in the rules of appellate procedure for
giving notice of appeal.” N.C. Gen. Stat. § 15A-1448(a)(1) (2023). Our Rules of
Appellate Procedure allow a written notice of appeal in a criminal case to be filed 14
days after entry of judgment. N.C. R. App. P. 4(a)(2). The trial court has jurisdiction
until notice of appeal has been given and 14 days have elapsed.
Here, more than 14 days had passed and Defendant had entered oral notice of
appeal from the 8 November 2024 judgments. The trial court had been divested of
jurisdiction over this case. A judgment “is void ab initio . . . when it is issued by a
court that does not have jurisdiction . . . [it] is a nullity and may be attacked either
directly or collaterally, or may simply be ignored.” State v. Sams, 317 N.C. 230, 235,
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345 S.E.2d 179, 182 (1986) (citations omitted). Defendant’s oral notice of appeal from
his 13 June 2025 hearing is valid.
This Court possesses jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b) and
15A-1444(a) (2023). Defendant’s petition for writ of certiorari is dismissed as moot.
III. Issues
Defendant argues he received ineffective assistance of counsel (“IAC”) and the
trial court prejudicially erred by allowing testimony of other bad acts. Defendant
further argues the trial court erred in sentencing in the 8 November 2024 judgments
and it lacked jurisdiction to remedy the errors by resentencing him on 13 June 2025.
IV. Ineffective Assistance of Counsel
Defendant argues he received IAC at trial, by his counsel withdrawing his
objection to the State’s motion to join these separate offenses; not filing any notices
of defenses in accordance with N.C. Gen. Stat. § 15A-905(c) (2023); or making any
arguments or requesting jury instructions on self-defense or the castle doctrine; and,
by not calling Defendant to testify.
A. Standard of Review
A defendant must satisfy the two-pronged test announced by the Supreme
Court of the United States in Strickland v. Washington, in order to show IAC. 466
U.S. 668, 80 L. Ed. 2d 674 (1984). The test in Strickland for a defendant to show IAC
has been adopted by the Supreme Court of North Carolina for state constitutional
purposes. State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985).
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Defendant “must show that his counsel’s conduct fell below an objective
standard of reasonableness.” Id. at 561-62, 324 S.E.2d at 248 (citing Strickland, 466
U.S. at 687-8, 80 L. Ed. 2d at 693).
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Id.
When reviewing a claim for IAC “this Court engages in a presumption that
trial counsel’s representation is within the boundaries of acceptable professional
conduct.” State v. Roache, 358 N.C. 243, 280, 595 S.E.2d 381, 406 (2004) (citation
omitted). “We ordinarily do not consider it to be the function of an appellate court to
second-guess counsel’s tactical decisions[.]” State v. Lowery, 318 N.C. 54, 68, 347
S.E.2d 729, 739 (1986).
B. Joinder
Joinder of two or more offenses for trial is proper where there is a transactional
connection, and when doing so would not impair the defendant’s right to a fair trial.
N.C. Gen. Stat. § 15A-926 (2023); State v. Perry, 142 N.C. App. 177, 180-81, 541
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S.E.2d 746, 747-48 (2001). This Court considers: “(1) the nature of the offenses
charged; (2) any commonality of facts between the offenses; (3) the lapse of time
between the offenses; and (4) the unique circumstances of each case,” when reviewing
a transactional connection between the offenses. State v. Montford, 137 N.C. App.
495, 498-99, 529 S.E.2d 247, 250 (2000).
Both assaults on Herlocker and Locklear occurred as a direct result of violent
domestic incidents between Defendant and Caulder. Both victims were attempting
to intervene and protect Caulder from Defendant. Both assaults involved the same
witnesses. Locklear was present at both assaults, Herlocker was present at the first
assault and present in the aftermath of the second. The facts associated with both
offenses have a transactional connection and were properly joined under N.C. Gen.
Stat. § 15A-926 (2023).
Defendant’s allegations challenging joinder of offenses for trial fail both prongs
in Strickland. 466 U.S. at 687-8, 80 L. Ed. 2d at 693. Defendant’s argument is
overruled.
C. Self-Defense and Castle Doctrine
Defendant argues he received IAC by his counsel’s failure to file any notice of
defense under N.C. Gen. Stat. § 15A-905(c) (2023) or seeking for the trial court to
provide jury instructions on self-defense or the castle doctrine.
The castle doctrine applies to “[t]he lawful occupant,” the record establishes
Defendant was not the lawful occupant of Herlocker’s home. N.C. Gen. Stat. § 14-
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51.2(b) (2023). Defendant is also not entitled to a self defense instruction as he was
assaulting and choking Caulder, the property owner’s daughter and “lawful
occupant,” of the “little cottage” when Locklear arrived. Defendant cannot meet the
first prong of Strickland. 466 U.S. at 687-8, 80 L. Ed. 2d at 693. Defendant’s
argument is overruled.
D. Defendant Not Testifying
Defendant further argues he received IAC by his counsel’s failure to call for
him to testify at trial. Defendant expressly decided not to testify after the trial court
had conducted an extensive colloquy of his rights. Defendant’s counsel presented a
witness list to the State showing pretrial preparation had occurred. Defendant did
not present any evidence to preserve the right to present the final argument to the
jury. Our court does not “consider it to be the function of an appellate court to second-
guess counsel’s tactical decisions[.]” Lowery, 318 N.C. at 68, 347 S.E.2d at 739.
Defendant’s IAC argument is overruled.
V. Rule 404(b) - Evidence of Other Crimes
Defendant argues the trial court erred by failing to exclude unrelated evidence
of Defendant smoking marijuana with Locklear.
Our Supreme Court has held:
When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling . . . we look to whether the evidence supports the findings and whether
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the findings support the conclusions. We review de novo the legal conclusions that the evidence is, or is not, within the coverage of Rule 404(b).
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012).
B. Analysis
Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such a proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2023).
The Supreme Court of North Carolina has repeatedly interpreted Rule 404(b)
to be a rule of inclusion, and not exclusion. Beckelheimer, 366 N.C. at 131, 726 S.E.2d
at 159. This inclusion of Rule 404(b) testimony or evidence is constrained by the
requirements of similarity and temporal proximity of the evidence to the alleged bad
acts. State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002).
Admission of evidence under Rule 404(b) is “subject to but one exception
requiring the exclusion of evidence if its only probative value is to show that the
defendant has the propensity or disposition to commit an offense of the nature of the
crime charged.” State v. Lyons, 340 N.C. 646, 668, 459 S.E.2d 770, 782 (1995) (citation
omitted).
During trial, Locklear testified about Defendant purportedly using marijuana
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three times. The first time Locklear testified concerned an incident at a birthday
party, where Defendant was:
very irritable, and I had you know, rushed out to the car and asked him to stay and eat some burgers and maybe drink some beer. And we were going to go behind my home and smoke a little marijuana.
Defendant failed to object.
Locklear later testified about another occasion where he and Defendant were
putting together bunk beds and they were “smoking a little marijuana.” Later, during
questioning, Locklear responded to a question about his and Defendant’s interactions:
“[W]e went looking for a little bit of marijuana. He proceeded to try to intimidate me,
telling me he had killed somebody and buried them under a tree[.]” Defendant then
objected and the trial court overruled this objection. The basis of the objection was
not stated in the record. Defendant only argues the trial court failed to exclude
unrelated evidence related to the marijuana and does not make any arguments about
Locklear’s testimony about Defendant had “killed somebody.”
Our Supreme Court has held “[w]here evidence is admitted over objection and
the same evidence has been previously admitted . . ., the benefit of the objection is
lost.” State v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995).
Our appellate rules provide:
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without such action nevertheless may be made the basis of an issue presented on appeal when the
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judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C. R. App. P. 10(a)(4). Defendant does not argue on appeal the admission of this
testimony, concerning marijuana after his counsel’s previous failure to object or move
to strike amounts to plain error. See State v. Dennison, 359 N.C. 312, 313, 608 S.E.2d
756, 757 (2005); State v. Smith, 269 N.C. App. 100, 105, 837 S.E.2d 166, 169 (2019).
Defendant instead argues he received IAC if this Court finds the objections
were not specific and did not properly preserve this issue for appellate review. While
the grounds where Defendant’s counsel objected could reasonably be tied to
Defendant telling Locklear he had previously “killed somebody” and not to the prior
marijuana use, presuming, without deciding, the objection addressed Defendant’s
purported marijuana use, Defendant’s objection was properly overruled. Defendant’s
counsel’s purported failure to previously object to the two instances of purported
marijuana use also does not meet either prong of Strickland to constitute IAC. 466
U.S. at 687-8, 80 L. Ed. 2d at 693. Defendant’s argument is overruled.
VI. Sentencing
As noted above concerning Defendant’s petition for writ of certiorari, the trial
court was divested of jurisdiction when it entered the 13 June 2025 sentencing
judgment. “When the record shows a lack of jurisdiction in the lower court, the
appropriate action . . . [for] the appellate court is to . . . vacate any order entered
without authority.” State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981)
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(citations omitted). The judgments entered on 13 June 2025 are vacated. This Court
will review the sentences imposed on Defendant’s properly appealed 8 November
2024 judgments.
Defendant argues, and the State concedes, Defendant had four prior class A1
or 1 misdemeanors and should have been sentenced on all felony judgments as a prior
record level III; Defendant was improperly sentenced to 22 to 39 months, which is
outside the range of sentences prescribed by N.C. Gen. Stat. 15A-1340.17 (2023) for
the Class H Felony Assault by strangulation; Defendant was improperly sentenced
to 22 to 39 months for the Class G Felony possession of a firearm by a convicted felon;
and Defendant improperly received an additional record level point under N.C. Gen.
Stat. § 15A-1340.17(b)(6) (2023). The erroneous judgments are vacated.
A. Aggravating Factor
Defendant further argues the trial court erred by failing to distinguish its
application of the aggravating factor on all charges in the assault by strangulation
judgment. N.C. Gen. Stat. § 15A-1340.4(a)(1) (2023) provides: “Evidence necessary
to prove an element of the offense shall not be used to prove any factor in
aggravation.”
The aggravating factor was not given to the jury on the charge of assault with
a deadly weapon in the presence of a minor. The charge of assault with a deadly
weapon in the presence of a minor and the aggravating factor of in the presence of a
minor is the same evidence. See N.C. Gen. Stat. §§ 15A-1340.16(d)(13a); 14-33(D)
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(2023). Defendant’s convictions for assault on a female and communicating threats
can be consolidated for judgment with his conviction for assault by strangulation.
In Tucker, our Supreme Court held:
Thus, when separate offenses of different class levels are consolidated for judgment, the trial judge is required to enter judgment containing a sentence for the conviction at the highest class. Accordingly, the trial judge is limited to the statutory sentencing guidelines, set out at N.C.G.S. § 1340.17(c), for the class level of the most serious offense, rather than any of the lesser offenses in that same consolidated judgment. . . .
Determination of the convictions to which the sentencing guidelines apply becomes important for the application of aggravating factors. While “evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation, and the same item of evidence shall not be used to prove more than one factor in aggravation,” N.C.G.S. § 1340.16(d), where consolidated judgments are concerned, the analysis must go further. Any aggravating factors that are applied to the sentence will necessarily only apply to the offense in the judgment which provides the basis for the sentencing guidelines. Since the trial judge is required by the Structured Sentencing Act to enter judgment on a sentence for the most serious offense in a consolidated judgment, aggravating factors applied to the sentence for a consolidated judgment will only apply to the most serious offense in that judgment.
State v. Tucker, 357 N.C. 633, 637, 588 S.E.2d 853, 855 (2003).
Defendant’s judgment only applied to his “most serious offense in that
judgment,” the assault by strangulation conviction, which could receive an
aggravated sentence. Defendant’s argument is overruled.
The trial court prejudicially erred in sentencing in the 8 November 2024
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judgments. We vacate and remand to the superior court for a new sentencing
hearing. Because we vacate Defendant’s judgments, we do not review Defendant’s
sentencing phase IAC arguments, as the issue is not likely to recur on remand.
VII. Conclusion
Defendant did not receive IAC. The trial court did not err in admitting
testimony of Defendant’s purported use of marijuana. Defendant received a fair trial
free from prejudicial errors he preserved and argued.
As the State concedes, the trial court prejudicially erred in sentencing
Defendant. The judgments are vacated and remanded solely for a new sentencing
hearing at correct prior record levels and as consistent herein. It is so ordered.
NO ERROR AT TRIAL; JUDGMENTS VACATED AND REMANDED FOR
RESENTENCING.
Chief Judge DILLON and Judge CARPENTER concur.
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