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State v. Emigh

Court of Appeals of North Carolina

December 5, 2017

STATE OF NORTH CAROLINA,
v.
ALLEN MICHAEL EMIGH, Defendant.

          Heard in the Court of Appeals 21 August 2017.

         Appeal 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.

          BERGER, JUDGE

         A Gates 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.

         Factual & Procedural Background

         Evidence 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.

         Officer 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 deer.

         During 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.

         Officer 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.

         Standard of Review

         "[T]he 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 ...


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