in the Court of Appeals 21 August 2017.
by defendant from judgment entered 6 September 2016 by Judge
Alma L. Hinton in Gates County No. 15CRS241 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Daniel S. Hirschman, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender James R. Grant, for defendant-appellant.
County jury found Allen Michael Emigh ("Defendant")
guilty of unlawfully taking deer with the assistance of
artificial lighting on September 6, 2016. Defendant received
a probationary sentence, including electronic monitoring, and
was ordered to pay a $500.00 fine. Defendant timely appealed,
arguing that the trial court committed prejudicial error when
instructing the jury on the substantive offense. We disagree.
& Procedural Background
presented at trial tended to establish that on the evening of
November 29, 2015, North Carolina Wildlife Resource
Commission Officer Brandon Wilkins was on routine assignment
in Gates County when he received a phone call regarding
possible deer hunting at night. Officer Wilkins responded to
the area of Indian Neck, where he observed a pick-up truck in
the middle of a field with a spotlight emanating from the
interior of the vehicle and sweeping across the field.
Officer Wilkins then heard gunshots coming from the direction
of the pick-up truck.
Wilkins initiated a stop of the vehicle after it left the
field. Defendant was one of five occupants of the vehicle.
Defendant informed Officer Wilkins that they were beaver
hunting, and that they had discharged between fifteen and
seventeen rounds of ammunition. Officer Wilkins testified
that two of the three firearms located in the vehicle were
typical "small- to mid-caliber rifles" used to hunt
the course of his investigation, Officer Wilkins observed
blood in the back of the pick-up truck. According to the
occupants of the vehicle, the blood was from a deer killed
earlier in the day.
Wilkins cited Defendant for unlawfully taking a deer with the
aid of an artificial light. Defendant was convicted in
District Court, and appealed for trial de novo in
Superior Court. A Gates County jury convicted Defendant in
Superior Court, and Defendant appeals, arguing that the trial
court erred when it purportedly expressed an opinion while
instructing the jury that "sweeping a spotlight over a
field and firing a weapon" was an attempt to hunt deer.
Defendant failed to object to the jury instructions at trial.
plain error standard of review applies on appeal to
unpreserved instructional . . . error." State v.
Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).
To show plain error, a party must demonstrate that the
instructional error was "so fundamental as to amount to
a miscarriage of justice or which probably resulted in the
jury reaching a different verdict than it otherwise would
have reached." State v. Bagley, 321 N.C. 201,
213, 362 S.E.2d 244, 251 (1987), cert. denied, 485
U.S. 1036, 99 L.Ed.2d 912 (1988). "Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affects the fairness, integrity or ...