In State of North Carolina v. Justin Isaiah Bess (COA24-945), an unpublished opinion of the North Carolina Court of Appeals filed in August of 2026, the Court looks at the important issue of when a jury should be given an instruction on a lesser included offense. The facts involved in this case are unfortunate and troubling, however the legal analysis of this opinion should prove to be helpful and valuable to criminal law practitioners.
Mr. Bess had known the deceased for years and the two were best friends. In early 2020, someone broke into the apartment that Mr. Bess shared with his girlfriend. Several items were taken including a pair of Mr. Bess’s shoes. Mr. Bess suspected that more than one person was responsible for the break-in. In March of 2020, Mr. Bess received a text and video from another friend that showed items taken from his apartment. Mr. Bess then began scrolling though social media pages on his phone and discovered a video of a person in the front seat of a car with money and a firearm in his lap as well as Mr. Bess’s stolen shoes. Mr. Bess was able to identify the shoes as his due to identifying markings. Mr. Bess also recognized the firearm as one that had just recently been purchased by the deceased. Mr. Bess then called and texted the deceased, asking him whether or not he had broken into his apartment. The deceased denied breaking into Mr. Bess’s apartment.
Even before seeing the video online, Mr. Bess had suspected the deceased of playing a part in the break-in. Tension between the two had been high since the break-in. Mr. Bess told the deceased that they should talk in person. They agreed on a meeting location and Mr. Bess decided to take a firearm just in case there was trouble. Mr. Bess rode in a car with three others to meet the deceased. The deceased also rode in a vehicle with other men to meet Mr. Bess at the designated location. Mr. Bess sat on the hood of the vehicle and waited for the deceased to arrive. The deceased arrived at the scene and walked over to where Mr. Bess was. Mr. Bess confronted the deceased about the break-in while showing him the online video. Mr. Bess testified at trial that the deceased admitted to participating in the break-in. Mr. Bess thought he saw the deceased reach for something in his pocket and give a signal to the other men who had ridden to the location with the deceased. Mr. Bess testified that he was “always on alert” so he ended up shooting the deceased several times. The deceased fell to the ground and stopped moving. Mr. Bess bent down to see what the deceased had been reaching for. He discovered that the decease had been reaching for his phone. At trial, the medical examiner testified that the deceased had suffered from sixteen gunshot wound injuries and had died from these wounds.
Mr. Bess was indicted by a Gaston County grand jury in May of 2020 and July of 2023 on the charges of first-degree murder and possession of a firearm by a felon. Mr. Base was tried on these charges in late 2023. Mr. Bess was found guilty by a jury of first-degree murder under the theories of premeditation and deliberation and felony murder. He was also found guilty of possession of a firearm by a felon. Mr. Bess gave timely notice of appeal of these convictions.
On appeal, Mr. Bess argued that the trial court erred by not instructing the jury on second-degree murder. The jury had received instructions on first-degree murder as well as perfect and imperfect self-defense. The jury had the option of acquitting Mr. Bess based on self-defense or of finding him guilty of voluntary manslaughter. The appellate Court determined that because the State had presented evidence that established each and every element of first-degree murder and there was no evidence to negate these elements, there was no error committed by the trial court. Before diving into its analysis, the Court determined that the issue of the second-degree murder jury instruction had been properly preserved for appeal by Mr. Bess’s trial counsel. The appellate Court went on to review the issue of the trial court’s decision on the second-degree murder instruction de novo.
It was Mr. Bess’s burden on appeal to show not only that the denial of the jury instruction on second-degree murder was erroneous but also that he was prejudiced by the trial court’s decision regarding this instruction. In order to show prejudice, Mr. Bess needed to show that had the error not been committed, a different result would have been reached at the trial. Because Mr. Bess was convicted of first-degree murder under two different theories, he would have had to show that the jury’s verdicts on premeditation and deliberation and felony murder were both the result of reversible error.
In order for a defendant to have an instruction on a lesser included offense submitted to the jury, there must have been evidence presented at trial to support the lesser included offense. An instruction on a lesser included offense must be given only if the evidence would permit the jury to rationally find the defendant guilty of the lesser offense and acquit the defendant of the greater offense. In this case, first-degree murder is the unlawful and intentional killing of a human being with malice and with premeditation and deliberation. Second-degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation. If the State’s evidence establishes each and every element of first-degree murder and there is no evidence to negate these elements, then a defendant is not entitled to have an instruction on second-degree murder submitted to the jury.
The Court focused its attention on whether there was any evidence at trial that tended to negate premeditation and deliberation. The evidence of this case tended to show that Mr. Bess prepared for his meeting with the deceased by arming himself. He kept the firearm available because he feared that trouble could arise during the meeting with the deceased. During the trial, Mr. Bess testified that he shot the deceased because he believed that the deceased was reaching for a firearm. Mr. Bess claimed that he shot the deceased in self-defense. The self-defense theory was presented to the jury and ultimately rejected by the jury. The conflict in the evidence that Mr. Bess presented was over the issue of self-defense and the jury was given instructions on self-defense and voluntary manslaughter. Because the evidence presented at trial did not negate the elements of premeditation and deliberation, an instruction on second-degree murder was not supported by the evidence. Because Mr. Bess did not show that the trial court erred by not instructing the jury on second-degree murder, the appellate Court determined that addressing the conviction based on felony murder was unnecessary.
From the perspective of a criminal defense practitioner, this case illustrates the importance of presenting evidence at trial that negates each and every element of the charged crime especially when lesser included offenses are a possibility. When the decision is made for our clients to take the witness stand, structuring their testimony such that all elements of a charged crime are addressed is crucial. Our clients often have a burning urge to take the stand so that they can get their side of the story before the jury. However, as important as this obviously is, if their side of the story does not address the elements of the charged crime, then their testimony could unfortunately end up being an exercise in futility.
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