disjunctive instruction in North Carolina

2025TATE Opinion of the Court relying on State v. Diaz, 317 N.C. 545 , 346 S.E.2d 488 (1986), our Supreme Court provided that a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. 330 N.C. 298, 302-03 , 412 S.E.2d 308, 312 (1991) (emphasis in original).

2025TATE Opinion of the Court relying on State v. Diaz, 317 N.C. 545 , 346 S.E.2d 488 (1986), our Supreme Court provided that a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. 330 N.C. 298, 302-03 , 412 S.E.2d 308, 312 (1991) (emphasis in original).

2025In contrast, this Court has established that “if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.” Lawrence, 360 N.C. at 374 (quoting State v. Lyons, 330 N.C. 298, 303 (1991)); see State v. Hartness, 326 N.C. 561 (1990) (holding that when a “single wrong is established by a finding of various alternative elements” a trial judge’s disjunctive instruction as to the alternatives that establish the element does not implicate the right to a unanimous verdict).

2018App. ----, ----, 801 S.E.2d 356 , 361 (2017) ; see also State v. Boyd , 366 N.C. 548 , 548, 742 S.E.2d 798 , 799 (2013) ( per curiam ) (changing the rule that previously held that a disjunctive instruction not supported by the evidence on both theories was per se plain error).

2017In contrast, this Court has recognized a second line of cases [stemming from State v. Hartness, 326 N.C. 561 , 391 S.E.2d 177 (1990),] standing for the proposition that "if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied." In this type of case, the focus is on the intent or purpose of the defendant instead of his conduct. 359 N.C. 1 , 29-30, 603 S.E.2d 93 , 112-13 (2004) (citing and quoting State v. Lyons, 330 N.C. 298 , 302-03, 412 S.E.2d 308 , 312 (1991) ), cert. d

2017See, e.g., Jefferies , --- N.C.App. at ----, 776 S.E.2d at 880 ; State v. Dick , --- N.C.App. ----, 791 S.E.2d 873 , COA15-1400, 2016 WL 5746395 , *1, *4-5 (2016) (remanding for a new trial because "the trial court's disjunctive instruction on the charge of first degree sexual offense was erroneous, and that error prejudiced [the d]efendant") (citing Pakulski , 319 N.C. at 574 , 356 S.E.2d at 326 ); State v. Collington , 242 N.C.App. 252 , 775 S.E.2d 926 , 2015 WL 4081786 *1, *4 (2015) (citing Pakulski for the proposition that "a trial court commits plain error when it instructs a jury on disj

2017See, e.g., Jefferies , --- N.C.App. at ----, 776 S.E.2d at 880 ; State v. Dick , --- N.C.App. ----, 791 S.E.2d 873 , COA15-1400, 2016 WL 5746395 , *1, *4-5 (2016) (remanding for a new trial because "the trial court's disjunctive instruction on the charge of first degree sexual offense was erroneous, and that error prejudiced [the d]efendant") (citing Pakulski , 319 N.C. at 574 , 356 S.E.2d at 326 ); State v. Collington , 242 N.C.App. 252 , 775 S.E.2d 926 , 2015 WL 4081786 *1, *4 (2015) (citing Pakulski for the proposition that "a trial court commits plain error when it instructs a jury on disj

2017"Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Scott , 356 N.C. 591 , 597, 573 S.E.2d 866 , 869 (2002).

2017"Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." State v. Scott , 356 N.C. 591 , 597, 573 S.E.2d 866 , 869 (2002).

2017State v. Lynch , 327 N.C. 210 , 219, 393 S.E.2d 811 , 816 (1990) (holding that insufficient evidence regarding one theory submitted to the jury, when prejudicial, was reversible error requiring new trial).

2017State v. Lynch , 327 N.C. 210 , 219, 393 S.E.2d 811 , 816 (1990) (holding that insufficient evidence regarding one theory submitted to the jury, when prejudicial, was reversible error requiring new trial).

2017However, because we have left Defendant's convictions undisturbed, we affirm the trial court's order in this regard. 8 State v. Petersilie , 334 N.C. 169 , 432 S.E.2d 832 (1993) ; State v. Tucker , 317 N.C. 532 , 346 S.E.2d 417 (1986) ; State v. Brown , 312 N.C. 237 , 321 S.E.2d 856 (1984). 9 Further, it seems to me that if unanimity is satisfied from disjunctive instructions as to alternative acts-even one or more not supported by the evidence-from a constitutional perspective, a disjunctive instruction that is challenged simply because an alternative theory is not supported by the evidence c

2017However, because we have left Defendant's convictions undisturbed, we affirm the trial court's order in this regard. 8 State v. Petersilie , 334 N.C. 169 , 432 S.E.2d 832 (1993) ; State v. Tucker , 317 N.C. 532 , 346 S.E.2d 417 (1986) ; State v. Brown , 312 N.C. 237 , 321 S.E.2d 856 (1984). 9 Further, it seems to me that if unanimity is satisfied from disjunctive instructions as to alternative acts-even one or more not supported by the evidence-from a constitutional perspective, a disjunctive instruction that is challenged simply because an alternative theory is not supported by the evidence c

2017However, because we have left Defendant's convictions undisturbed, we affirm the trial court's order in this regard. 8 State v. Petersilie , 334 N.C. 169 , 432 S.E.2d 832 (1993) ; State v. Tucker , 317 N.C. 532 , 346 S.E.2d 417 (1986) ; State v. Brown , 312 N.C. 237 , 321 S.E.2d 856 (1984). 9 Further, it seems to me that if unanimity is satisfied from disjunctive instructions as to alternative acts-even one or more not supported by the evidence-from a constitutional perspective, a disjunctive instruction that is challenged simply because an alternative theory is not supported by the evidence c

2017However, because we have left Defendant's convictions undisturbed, we affirm the trial court's order in this regard. 8 State v. Petersilie , 334 N.C. 169 , 432 S.E.2d 832 (1993) ; State v. Tucker , 317 N.C. 532 , 346 S.E.2d 417 (1986) ; State v. Brown , 312 N.C. 237 , 321 S.E.2d 856 (1984). 9 Further, it seems to me that if unanimity is satisfied from disjunctive instructions as to alternative acts-even one or more not supported by the evidence-from a constitutional perspective, a disjunctive instruction that is challenged simply because an alternative theory is not supported by the evidence c

2017See, e.g., Jefferies , --- N.C.App. at ----, 776 S.E.2d at 880 ; State v. Dick , --- N.C.App. ----, 791 S.E.2d 873 , COA15-1400, 2016 WL 5746395 , *1, *4-5 (2016) (remanding for a new trial because "the trial court's disjunctive instruction on the charge of first degree sexual offense was erroneous, and that error prejudiced [the d]efendant") (citing Pakulski , 319 N.C. at 574 , 356 S.E.2d at 326 ); State v. Collington , 242 N.C.App. 252 , 775 S.E.2d 926 , 2015 WL 4081786 *1, *4 (2015) (citing Pakulski for the proposition that "a trial court commits plain error when it instructs a jury on disj

2017See, e.g., Jefferies , --- N.C.App. at ----, 776 S.E.2d at 880 ; State v. Dick , --- N.C.App. ----, 791 S.E.2d 873 , COA15-1400, 2016 WL 5746395 , *1, *4-5 (2016) (remanding for a new trial because "the trial court's disjunctive instruction on the charge of first degree sexual offense was erroneous, and that error prejudiced [the d]efendant") (citing Pakulski , 319 N.C. at 574 , 356 S.E.2d at 326 ); State v. Collington , 242 N.C.App. 252 , 775 S.E.2d 926 , 2015 WL 4081786 *1, *4 (2015) (citing Pakulski for the proposition that "a trial court commits plain error when it instructs a jury on disj

2017However, because we have left Defendant's convictions undisturbed, we affirm the trial court's order in this regard. 8 State v. Petersilie , 334 N.C. 169 , 432 S.E.2d 832 (1993) ; State v. Tucker , 317 N.C. 532 , 346 S.E.2d 417 (1986) ; State v. Brown , 312 N.C. 237 , 321 S.E.2d 856 (1984). 9 Further, it seems to me that if unanimity is satisfied from disjunctive instructions as to alternative acts-even one or more not supported by the evidence-from a constitutional perspective, a disjunctive instruction that is challenged simply because an alternative theory is not supported by the evidence c

2017However, because we have left Defendant's convictions undisturbed, we affirm the trial court's order in this regard. 8 State v. Petersilie , 334 N.C. 169 , 432 S.E.2d 832 (1993) ; State v. Tucker , 317 N.C. 532 , 346 S.E.2d 417 (1986) ; State v. Brown , 312 N.C. 237 , 321 S.E.2d 856 (1984). 9 Further, it seems to me that if unanimity is satisfied from disjunctive instructions as to alternative acts-even one or more not supported by the evidence-from a constitutional perspective, a disjunctive instruction that is challenged simply because an alternative theory is not supported by the evidence c

2017See, e.g., Jefferies , --- N.C.App. at ----, 776 S.E.2d at 880 ; State v. Dick , --- N.C.App. ----, 791 S.E.2d 873 , COA15-1400, 2016 WL 5746395 , *1, *4-5 (2016) (remanding for a new trial because "the trial court's disjunctive instruction on the charge of first degree sexual offense was erroneous, and that error prejudiced [the d]efendant") (citing Pakulski , 319 N.C. at 574 , 356 S.E.2d at 326 ); State v. Collington , 242 N.C.App. 252 , 775 S.E.2d 926 , 2015 WL 4081786 *1, *4 (2015) (citing Pakulski for the proposition that "a trial court commits plain error when it instructs a jury on disj

2017See, e.g., Jefferies , --- N.C.App. at ----, 776 S.E.2d at 880 ; State v. Dick , --- N.C.App. ----, 791 S.E.2d 873 , COA15-1400, 2016 WL 5746395 , *1, *4-5 (2016) (remanding for a new trial because "the trial court's disjunctive instruction on the charge of first degree sexual offense was erroneous, and that error prejudiced [the d]efendant") (citing Pakulski , 319 N.C. at 574 , 356 S.E.2d at 326 ); State v. Collington , 242 N.C.App. 252 , 775 S.E.2d 926 , 2015 WL 4081786 *1, *4 (2015) (citing Pakulski for the proposition that "a trial court commits plain error when it instructs a jury on disj

2014Id. at 234-35 , 587 S.E.2d at 896 .

2014Id. at 234-35 , 587 S.E.2d at 896 .

2011App. 73, 82 , 669 S.E.2d 40, 46 (2008) (stating that, “if the General Assembly had chosen to define the. quantity of methamphetamine needed to constitute trafficking as 28 grams or more and added, as it did in other sections of the trafficking statute, the disjunctive clause ‘or any mixture containing such substance,’ the total weight of the liquid found with detectable amounts of methamphetamine would be sufficient to establish a violation of’ the trafficking in methamphetamine statutes), disc. review denied, 363 N.C. 132 , 673 S.E.2d 665 (2009).

2011App. 73, 82 , 669 S.E.2d 40, 46 (2008) (stating that, “if the General Assembly had chosen to define the. quantity of methamphetamine needed to constitute trafficking as 28 grams or more and added, as it did in other sections of the trafficking statute, the disjunctive clause ‘or any mixture containing such substance,’ the total weight of the liquid found with detectable amounts of methamphetamine would be sufficient to establish a violation of’ the trafficking in methamphetamine statutes), disc. review denied, 363 N.C. 132 , 673 S.E.2d 665 (2009).

2008Gen.Stat. § 90-95(h)(3) (2005), which provides that a person is guilty of trafficking in cocaine if he "sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine." Defendant notes that trafficking in cocaine by sale, manufacture, delivery, transportation, and possession are "separate trafficking offenses for which a defendant may be separately convicted and punished." State v. Garcia, 111 N.C.App. 636 , 641, 433 S.E.2d 187 , 190 (1993).

2008Gen.Stat. § 90-95(h)(3) (2005), which provides that a person is guilty of trafficking in cocaine if he "sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine." Defendant notes that trafficking in cocaine by sale, manufacture, delivery, transportation, and possession are "separate trafficking offenses for which a defendant may be separately convicted and punished." State v. Garcia, 111 N.C.App. 636 , 641, 433 S.E.2d 187 , 190 (1993).