State v. Tadlock

• Court: Supreme Court of North Carolina
• Decided: May 22, 2026
• Docket: 191PA25
• Status: Published
• Author: Justice Phil Berger Jr.

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

No. 191PA25

Filed 22 May 2026

STATE OF NORTH CAROLINA

v. BRYAN SCOTT TADLOCK

On discretionary review pursuant to N.C.G.S. § 7A-31 of the decision of a

divided panel of the Court of Appeals, 299 N.C. App. 754 (2025), finding no error after

appeal from judgments entered on 26 October 2023 by Judge Gary M. Gavenus in

Superior Court, Haywood County. Heard in the Supreme Court on 19 February 2026.

Jeff Jackson, Attorney General, by Teresa M. Postell, Special Deputy Attorney General, for the State-appellee.

Phoebe W. Dee for defendant-appellant.

BERGER, Justice.

Defendant was tried and convicted of, among other things, two counts of

assault by strangulation. At the close of the State’s evidence, defense counsel moved

to dismiss “some of the indictments,” but he specifically exempted the assault by

strangulation charges from his motion to dismiss. Defense counsel informed the trial

court that he could not “stand here in good faith and ask the court to dismiss [the

assault by strangulation charges because] . . . there’s evidence to go to a jury to

consider there. So my motions are with respect to four of the six charges.” STATE V. TADLOCK

Opinion of the Court

Defendant renewed his motion to dismiss at the close of all evidence, and the

trial court sua sponte asked “why there are two distinct charges of strangulation” and

“how they are distinct in time.” Defense counsel declined to take a position,

responding simply that he would “just leave it in the court’s discretion.”

The Court of Appeals reached the merits of defendant’s argument and

concluded that the State presented sufficient evidence to survive a motion to dismiss

the two separate counts of assault by strangulation despite the fact that no such

motion was made in the trial court. State v. Tadlock, 299 N.C. App. 754, 762 (2025).

The dissent would have held the trial court “erred in denying defendant’s motion to

dismiss one of the two assault by strangulation charges.” Id. at 775 (Freeman, J.,

concurring in part and dissenting in part).

We allowed defendant’s petition for discretionary review to consider whether

the Court of Appeals’ majority erred in determining the State presented sufficient

evidence to support two separate counts of assault by strangulation. In analyzing

this question, we must consider as a preliminary matter whether the Court of Appeals

erred under Rule 10 of the Rules of Appellate Procedure in reaching the merits of an

argument that was not properly preserved. We reverse in part and vacate in part the

decision of the Court of Appeals.

I. Factual and Procedural Background

The State’s evidence tended to show that defendant was married to the victim

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in this case, K.S.1 On 18 March 2022, defendant had been drinking heavily and later

assaulted K.S. in a dispute over a necklace. Defendant held K.S. at gun point,

dragged her by her hair, and later placed the barrel of the firearm into K.S.’s mouth.

When K.S. fought back against the attack, defendant wrapped his hands

around K.S.’s neck from behind and began to choke her. K.S. then fell when

defendant struck her in the head with the firearm, and while she was on the floor,

defendant began choking her again with one hand while holding his gun in the other

hand. At some point during the struggle, defendant dropped his gun on the ground

to choke K.S. with both hands and K.S. was able to throw the gun across the room.

As the two continued to struggle on the floor, defendant pressed his arm against K.S.’s

throat, and she lost consciousness.

K.S. regained consciousness, and defendant initiated sexual intercourse with

K.S. She did not resist out of fear of retaliation by defendant. K.S. planned to leave

the house when defendant fell asleep, and she “did whatever he wanted, said

whatever he wanted, [and] agreed to whatever he wanted so that he wouldn’t get

angry again.” K.S. later went to the hospital to be treated.

Defendant was indicted for attempted murder, first-degree kidnapping, first-

degree forcible rape, assault with a deadly weapon with intent to kill inflicting serious

injury, and two counts of assault by strangulation under N.C.G.S. § 14-32.4. At the

1 We use the victim’s initials throughout to protect her identity. See N.C. R. App. P. 42.

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close of the State’s evidence, defense counsel moved to dismiss “some of the

indictments” but specifically exempted the assault by strangulation charges from his

motion to dismiss. Defense counsel stated:

Now, with respect, Judge, to the assault by strangulation, I can’t stand here in good faith and ask the court to dismiss those. I can perhaps make other arguments, but as far as the allegations, the charges, there’s evidence to go to a jury to consider there. So my motions are with respect to four of the six charges.

After the State responded to defendant’s motions to dismiss and notably

omitted any argument regarding the assault by strangulation charges, the trial court

denied defendant’s motions.

Defendant renewed his motion to dismiss at the close of all evidence, and the

trial court sua sponte asked “why there are two distinct charges of strangulation” and

“how they are distinct in time.” Defense counsel responded by stating, “[T]he only

thing [is] . . . [i]t could have been conceivably consolidated into one indictment[,] . . .

[b]ut I’ll just leave it in the court’s discretion, Judge.” The State requested the trial

court “let both [charges] go to the jury, and then if [it] feel[s] like it’s one continuous

assault, [it] can always arrest judgment on one of them.” After hearing from the

parties, the trial court again denied defendant’s motions to dismiss.

The jury found defendant not guilty of attempted first-degree murder, but

found him guilty on all other felony charges, including both counts of assault by

strangulation. Defendant was sentenced to 73 to 100 months imprisonment for

kidnapping, 25 to 42 months for assault with a deadly weapon inflicting serious

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injury, 240 to 348 months for forcible rape, and 6 to 17 months for each charge of

assault by strangulation.

On appeal, defendant argued the trial court erred by: (1) refusing to instruct

the jury on the defense of voluntary intoxication; (2) failing to distinguish between

the injuries caused by each assault by strangulation; (3) failing to intervene ex mero

motu during the State’s closing arguments; and (4) assessing a $25,000 fine against

defendant at sentencing. Tadlock, 299 N.C. App. at 759. The Court of Appeals

majority rejected all of defendant’s arguments, concluded there was “no error at trial,”

and affirmed the judgments of the trial court. Id. at 772. Defendant also contended

that the trial court erred in denying his motion to dismiss one count of assault by

strangulation. Id. at 759.

The Court of Appeals recognized that defendant “did not actually make a

motion to dismiss either charge of [a]ssault by [s]trangulation” and that “[n]either

party has addressed preservation of this issue on appeal,” but determined the issue

was preserved under this Court’s decision in State v. Golder, 374 N.C. 238 (2020).

Tadlock, 299 N.C. App at 762.

In reaching the merits, the majority rejected all of defendant’s arguments and

concluded that the trial court did not err in submitting both assault by strangulation

charges to the jury because the State presented sufficient evidence “from which the

jury could find a distinct interruption between [d]efendant’s strangulation of K.S.

with his hands and his strangulation of K.S. with his arm.” Id. at 765. One judge on

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the panel disagreed and reasoned that under this Court’s precedent in State v. Dew,

379 N.C. 64 (2021), the State failed to present sufficient evidence of a distinct

interruption because “[w]hile there is evidence of defendant’s distinct actions within

the assault, the only apparent distinct interruption occurred when the victim fell

unconscious after defendant choked her for the third time.” Tadlock, 299 N.C. App.

at 773–75 (Freeman, J., concurring in part and dissenting in part).

We allowed defendant’s petition for discretionary review to determine whether,

under Dew, the State failed to present sufficient evidence to support multiple charges

of assault by strangulation. However, because the issue was not properly preserved,

we conclude the Court of Appeals erred in reaching the merits of defendant’s appeal

concerning the motion to dismiss. Accordingly, we reverse the Court of Appeals’

determination that this issue was preserved for appellate review and therefore vacate

the portion of the Court of Appeals’ decision addressing the merits of this issue. As

no other portion of the Court of Appeals’ decision is before us, we do not address the

other issues reached by the Court of Appeals.

II. Discussion

Preservation rules “serve[ ] crucial functions in our justice system,” State v.

Reber, 386 N.C. 153, 157 (2024), and the Rules of Appellate Procedure generally

prohibit appellate review of issues not properly preserved, see N.C. R. App. P. 10.

Rule 10(a)(3) states that “[i]n a criminal case, a defendant may not make insufficiency

of the evidence to prove the crime charged the basis of an issue presented on appeal

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unless a motion to dismiss the action, or for judgment as in case of nonsuit, is made

at trial.” N.C. R. App. P. 10(a)(3). Thus, a defendant may not argue sufficiency of the

evidence on appeal when no motion to dismiss is made.

This Court has recognized that “a motion to dismiss places an affirmative duty

upon the trial court to determine whether, when taken in the light most favorable to

the State, there is substantial evidence for every element of each charge against the

accused.” Golder, 374 N.C. at 246. Such a motion “preserves all insufficiency of the

evidence issues for appellate review.” Id.

By the rule’s plain language, a defendant may not challenge sufficiency of the

evidence in the appellate courts, inter alia, “unless a motion to dismiss the action . . .

is made at trial.” N.C. R. App. P. 10(a)(3) (emphasis added). Neither Rule 10(a)(3)

nor Golder allow defendants to circumvent or otherwise bypass preservation

requirements.

Here, defense counsel moved to dismiss four charges at the close of the State’s

evidence. Defense counsel did not move to dismiss either of the assault by

strangulation charges and specifically announced to the trial court that he could not

in good conscience request the trial court dismiss those charges. Thus, with respect

to the strangulation charges, he made no motion at all.

Defense counsel was given another opportunity to make a motion to dismiss

when the trial court inquired if the State’s evidence was sufficient to sustain the two

assault by strangulation charges. Defense counsel declined to assert any argument,

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other than saying he would leave it in the trial court’s discretion. Defense counsel

did not attempt to make a motion following up on the trial court’s inquiry, and he did

not request dismissal or otherwise assert that the State’s evidence was deficient.

The Court of Appeals correctly acknowledged that defendant did not move to

dismiss either charge of assault by strangulation. It concluded, however, that the

issue was reviewable because the trial court heard arguments from both parties.

Tadlock, 299 N.C. App. at 762. The Court of Appeals relied on Golder’s holding that

a “defendant’s simple act of moving to dismiss at the proper time preserved all issues

related to the sufficiency of the evidence for appellate review.” Id. (quoting Golder,

374 N.C. at 246). But the Court of Appeals did not point to any act by defendant that

could reasonably be construed as a motion, and the mere statement that the matter

was in the trial court’s discretion does not qualify as such.

Golder addressed what a timely motion to dismiss preserves for appellate

review, and neither Golder nor the text of Rule 10 excuse a defendant’s failure to

make such a motion. The Court of Appeals misconstrued Golder, and its reasoning

would essentially gut the preservation requirements of Rule 10(a)(3).2

2 We also note that defense counsel’s acknowledgement that he could not in good faith

make an argument for the assault by strangulation charges is consistent with Rule 3.1 of the North Carolina Rules of Professional Conduct, which requires attorneys to advance only meritorious claims. See N.C. Rules of Pro. Conduct r. 3.1. The comment to that section specifically states that lawyers must determine if “they can make good faith arguments in support of their clients’ positions.” When this is not possible, such an argument is deemed frivolous and may not be advanced. Id. It would be incongruent for an appellate court to say on the one hand that defense counsel did not assert an argument because it would have been frivolous, yet on the other hold that such frivolous argument was preserved.

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We also note that preservation under Rule 10(a)(3) is offense specific. The rule

provides that when a defendant’s motion to dismiss is allowed or “sustained on

appeal, it shall have the force and effect of a verdict of ‘not guilty’ as to such

defendant.” N.C. R. App. P. 10(a)(3). The Court of Appeals reading of Golder and

Rule 10(a)(3) neglects the fact that jury verdicts of “guilty” or “not guilty” are rendered

on an offense-by-offense basis, not for all offenses joined for trial. It cannot

reasonably be argued that the rule contemplates that a motion to dismiss made for

one offense somehow applies to all offenses for which a defendant is being tried. Put

another way, although Golder indicates that a motion to dismiss preserves all issues

related to sufficiency as to that charge, it does not preserve sufficiency issues related

to a defendant’s other charges.3

It is the burden of the party, not the trial court, to preserve issues for appellate

review. Except in narrow circumstances where preservation exists by operation of

3 Defendant and the Court of Appeals appear to suggest that even when there are

multiple charges of assault by strangulation and there is evidence from which, when taken in the light most favorable to the State, a jury could reasonably infer that the defendant strangled the victim multiple times, this somehow precludes submitting those charges to the jury for consideration. This front-end determination essentially provides a volume discount to a defendant and prevents the jury from fully considering the evidence presented. As the State correctly pointed out, to the extent the legal issue of distinct interruption from State v. Dew, 379 N.C. 64 (2021), is implicated, when the facts lead to multiple guilty verdicts, it is for the trial court to make the legal determination if merger should occur under Dew and judgment arrested on any necessary conviction. See State v. Fields, 374 N.C. 629, 637 (2020) (“Our holding that defendant could not be punished for habitual misdemeanor assault on the facts of this case is not the result of any fatal defect existing in the record. Rather, it is based [in part] on . . . the fact that both of defendant’s convictions arose from the same assaultive act. Accordingly, we agree that the Court of Appeals should have arrested the trial court’s judgment for habitual misdemeanor assault rather than vacating the judgment.”).

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law or review is authorized pursuant to an argument for plain error, issues not

preserved in the trial court are not properly before the appellate court. To hold that

a motion to dismiss one charge would extend the right to appeal based on the

sufficiency of the evidence as to all charges in a case would be an egregious expansion

of appellate review and inconsistent with the safeguards our appellate rules and

courts have strictly upheld.

III. Conclusion

Under Rule 10(a)(3), motions to dismiss for sufficiency of the evidence are

offense specific. Defendant declined to make a motion to dismiss at trial for his two

assault by strangulation offenses, and the Court of Appeals erred in treating the issue

as preserved. We therefore reverse in part and vacate in part the decision of the

Court of Appeals.

REVERSED IN PART; VACATED IN PART.

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Newby, C.J., concurring

Chief Justice NEWBY concurring.

I join the majority’s opinion in full. I agree that the Court of Appeals majority

decision should be modified and affirmed because defendant failed to preserve for

appellate review any motion to dismiss the second count of assault by strangulation.

I write separately to point out that if the issue had been properly before this

Court, each successive strangulation committed by defendant constitutes a unique

felonious action, as contemplated by the criminal statute. See N.C.G.S. § 14-32.4(b)

(2025); State v. Rambert, 341 N.C. 173, 459 S.E.2d 510 (1995). The Dew “distinct

interruption” analysis simply does not apply to the crime of assault by strangulation.

See State v. Dew, 379 N.C. 64, 864 S.E.2d 268 (2021).

“Unless the conduct is covered under some other provision of law providing

greater punishment, any person who assaults another person and inflicts physical

injury by strangulation is guilty of a Class H felony.” N.C.G.S. § 14-32.4(b).1

Strangulation is “a form of asphyxia characterized by closure of the blood vessels

and/or air passages of the neck as a result of external pressure on the neck brought

about by hanging, ligature, or the manual assertion of pressure.” N.C.P.I.—Crim.

1 The General Assembly criminalized assault by strangulation in a 2004 act meant to

heighten protection for victims of domestic violence. See An Act to Strengthen the Laws Against Domestic Violence, to Provide Additional Assistance to Domestic Violence Victims, and to Make Other Changes as Recommended by the House Select Committee on Domestic Violence, S.L. 2004-186, § 9.1, 2004 N.C. Sess. Laws 716, 733 (codified at N.C.G.S. § 14-32.4(b)).

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208.61 n.1 (June 2023); see State v. Braxton, 183 N.C. App. 36, 42, 643 S.E.2d 637,

642 (using the Pattern Jury Instructions to define “strangulation”), disc. rev. denied,

361 N.C. 697, 653 S.E.2d 4 (2007). This Court has never addressed how to delineate

between successive strangulations. If defendant’s motion to dismiss had been

preserved properly, this case would have given us an opportunity to determine

whether the “distinct interruption” test applies to the felony crime of assault by

strangulation, or whether each completed “strangulation” constitutes an independent

chargeable offense.

We adopted the “distinct interruption” test for general assault crimes in State

v. Dew. There this Court determined that a man could be charged with two general

assault crimes—two counts of assault with a deadly weapon inflicting serious

injury—when he continuously beat his girlfriend for two hours in a trailer, forced her

to clean up the mess, and then continuously beat her again for two hours in a car.

Dew, 379 N.C. at 73–74, 864 S.E.2d at 276. This Court determined that the break in

time and the change in location constituted a “distinct interruption” to support

charging the man with two counts of assault with a deadly weapon inflicting serious

injury. Id.

In doing so, we provided a framework on how to charge general assault crimes.

We defined “assault” as

an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put

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a person of reasonable firmness in fear of immediate bodily harm.

Id. at 70, 864 S.E.2d at 273–74 (quoting State v. Roberts, 270 N.C. 655, 658, 155

S.E.2d 303, 305 (1967)). In other words, assault is “ ‘[t]he threat or use of force on

another that causes that person to have a reasonable apprehension of imminent

harmful or offensive contact’ and ‘[p]opularly, any attack.’ ” Id. at 70, 864 S.E.2d at

274 (alterations in original) (quoting Assault, Black’s Law Dictionary (11th ed. 2019)).

“From these definitions,” we deduced that “assault is a broad concept that can include

more than one contact with another person”—i.e., a “single punch” or “a deluge of

punches in a single fight.” Id.

Using this framework, we explained that “[m]ultiple contacts can still be

considered a single assault, even though each punch or kick would require a different

thought process.” Id. at 72, 864 S.E.2d at 275. As such, we held that “the State may

charge a defendant with multiple counts of assault only when there is substantial

evidence that a distinct interruption occurred between assaults.” Id. A distinct

interruption can “take the form of an intervening event, a lapse of time in which a

reasonable person could calm down, an interruption in the momentum of the attack,

a change in location, or some other clear break delineating the end of one assault and

the beginning of another.” Id.

This Court previously determined that a different standard applied to a more

specific offense than a general assault crime. In State v. Rambert, a defendant fired

three gunshots into a vehicle. 341 N.C. at 174, 459 S.E.2d at 511. He argued that

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double jeopardy principles prevented him from being charged with three counts of

discharging a firearm into occupied property. Id. This Court determined that each

time the defendant fired the weapon constituted a “separate and distinct act[ ].” Id.

at 176, 459 S.E.2d at 512. We reasoned that “[e]ach shot, fired from a pistol, as

opposed to a machine gun or other automatic weapon, required that [the] defendant

employ his thought processes each time he fired the weapon. Each act was distinct in

time, and each bullet hit the vehicle in a different place.” Id. at 176–77, 459 S.E.2d

at 513. Accordingly, firing three consecutive shots into an occupied vehicle supported

charging the criminal defendant with three counts of discharging a firearm into

occupied property. Id. at 177, 459 S.E.2d at 513.

In Dew, this Court distinguished general assault crimes from the firearm

offense at issue in Rambert. Dew, 379 N.C. at 72, 864 S.E.2d at 275. Specifically, this

Court stated that “[d]ischarging a firearm means firing a shot; each distinctly fired

shot is a separate discharge of a firearm. The same is not true of assault which . . .

might refer to a single harmful contact or several harmful contacts within a single

incident.” Id. Thus, an “assault” can include multiple, continuous actions, whereas

the crime of discharging a firearm into occupied property requires only one action—

firing the weapon.

This Court has drawn a similar distinction between certain sex offenses. For

the general crime of taking indecent liberties with a child, we applied Dew’s “distinct

interruption” test. See State v. Calderon, 388 N.C. 700, 709–11, 923 S.E.2d 530,

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537–39 (2025). Contrarily, for the more specific sex crime of rape, we have stated that

“rape is not a continuous offense,” meaning that “each act of intercourse constitutes

a distinct and separate offense.” State v. Dudley, 319 N.C. 656, 659, 356 S.E.2d 361,

363 (1987) (quoting State v. Small, 31 N.C. App. 556, 559, 230 S.E.2d 425, 427 (1976),

cert. denied, 291 N.C. 715, 232 S.E.2d 207 (1977)). Like the distinction between

assault and discharging a firearm into occupied property, the crime of taking indecent

liberties with a child can be made up of multiple, continuous actions, whereas the

crime of rape requires only one action.

By criminalizing the specific crime of “assault by strangulation,” the General

Assembly intended the act of strangulation to be punished like the specific crimes

charged in Rambert and Dudley—discharging a firearm and rape. Accordingly, the

“distinct interruption” test applied to general crimes like assault and taking indecent

liberties with a child does not apply to the crime of assault by strangulation. Each

completed strangulation—i.e., each time a defendant has supplied “external pressure

on the [victim’s] neck . . . by hanging, ligature, or the manual assertion of pressure”

that results in “a form of asphyxia characterized by closure of the blood vessels and/or

air passages of the neck”—supports charging a defendant with independent counts of

assault by strangulation. N.C.P.I.—Crim. 208.61 n.1.

Therefore, the evidence presented in the instant case supported charging

defendant with multiple counts of assault by strangulation. But, as the majority

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opinion observes, defendant did not move to dismiss the second count. The Court of

Appeals’ decision is properly modified and affirmed.

I respectfully concur.

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