No. 2019-0608

Dec. 29, 2020

Reversed and remanded.


  • The Court considered whether there was sufficient evidence to support the defendant’s conviction and whether the trial court erred in: (1) denying a request for a self-defense jury instruction; (2) precluding evidence of a victim’s prior inconsistent statements; (3) allowing certain victim statements into evidence under the excited utterance exception to the hearsay rule; and (4) denying the defendant’s request to recall a witness.


The jury could have found that the defendant’s teenaged daughter invited the sixteen-year-old victim to a party, which the victim thought was at the defendant’s house. The victim entered the defendant’s house through an unlocked front door and went upstairs to a living room, where he discovered there was no party, and the defendant’s daughter was not there. The victim whispered the defendant’s daughter’s name and then turned to leave when he did not get a response. He caused noise as he left, and the defendant and her boyfriend chased him as the victim ran to his truck. The defendant’s boyfriend shot at the victim at the defendant’s urging. The defendant was later convicted of two charges of being an accomplice.

The Court found that the defendant failed to demonstrate that the evidence was insufficient to prove guilt and that there was, therefore, sufficient evidence to support the jury’s verdict. As to the charge of accomplice to attempted first degree assault, there was both direct and circumstantial evidence that could show the defendant’s actions aided her boyfriend in causing shots to be discharged from his gun. The Court concluded that the evidence was sufficient for a rational trier of fact to find, “beyond a reasonable doubt, that the defendant acted in concert with or aided her boyfriend in causing six bullets to be fired…”  As to the charge of accomplice to criminal mischief, the defendant contented that the State did not present evidence as to the cost of repairs to a truck damaged in the shooting, so there was not evidence to prove, beyond a reasonable doubt, that the defendant’s actions caused a loss in excess of $100. The Court found that it was sufficient for the State to prove that there was damage in excess of $100 to the truck through circumstantial evidence, such as the photographs depicting the damage that were presented to the jury.

The Court next considered whether it was an error for the Court to deny the defendant’s request for a self-defense jury instruction. The Court determined that the defendant had not waived the application of the request to the charges she was convicted of, although she only referenced other charges, which she was not convicted of, in her introductory paragraph of the notice of self-defense. The Court then found that there was more than a scintilla of evidence showing that she acted in self-defense, believing the victim was going to use unlawful, deadly force against her. The Court found the trial court had improperly made a determination as to the merits of the self-defense claim rather than evaluating if there was a scintilla of evidence to support the claim. The State argued that the trial court’s decision should be upheld since the defendant had not admitted to the facts that the claim of self-defense was based on, including that she had urged her boyfriend to fire his gun. The Court assumed without deciding that the defendant failed to admit the substance of the charges against her, which would have given the trial court discretion as to whether or not to provide the self-defense instruction. Because the trial court had not exercised that discretion when it made a ruling on an improper basis, and there was more than one way for the trial court to rule without abusing its discretion, the Court declined to uphold the trial court’s decision.

The Court did not address the trial court’s ruling that the victim’s statement could not be impeached with extrinsic evidence of inconsistent statements because the defendant did not demonstrate that the issue was preserved for review after counsel acquiesced to the trial court’s decision on that issue ruling during the trial. The Court also did not address the denial of the defendant’s request to recall a witness because the same issue was unlikely to arise on remand.

The Court did address whether the victim’s statements to a responding officer were admissible under the excited utterance exception to the hearsay rule. The defendant argued that the statements in question were made after enough time had passed that the victim could “contrive” his statements and that the trial court unsustainably exercised its discretion in permitting the statements to be introduced. The Court found that the record supported the trial court’s findings that statements in question were made when the victim was still under the stress of the incident, so the exercise of discretion to admit the statements as excited utterances was sustainable.

The Court remanded the case for a new trial on the grounds that the trial court erred when it failed to give the self-defense jury instruction.


Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock, assistant attorney general), for the State. Michael J. Zaino, Law Office of Michael J. Zaino, Hampton, for the defendant.