State of North Carolina vs. James Fredrick Bowman (COA23-82-2), is a case out of Durham County with an interesting trial and appellate procedural history. The case was before the North Carolina Court of Appeals twice. Initially, it was reversed in part and remanded with a dissent. Based on the dissent, the State appealed to the Supreme Court of North Carolina. The Supreme Court reversed the majority opinion of the Court of Appeals and remanded the case back to the lower appellate Court to address additional arguments raised by Mr. Bowman. Here we will focus our attention on the second opinion rendered by the Norh Carolina Court of Appeals. The issue addressed by the appellate Court is whether the trial court plainly erred by accepting two convictions for first-degree forcible sexual offense despite only charging on and submitting one count to the jury.
In October of 2019, Mr. Bowman was indicted by a Durham County grand jury on one count of first-degree forcible rape, two counts of first-degree forcible sexual offense, one count of possession of a firearm by a felon, one count of assault by pointing a gun, one count of assault on a female, and one count of communicating threats. He was tried by a jury and that trial subsequently ended in a mistrial. He was tried again in January of 2022, and these are the facts that were revealing in the second trial.
In the early morning hours of September 9, 2019, Mr. Bowan was banging on the door to a room that he rented with a woman. He and the woman were in a romantic relationship. The woman was awakened by Mr. Bowman’s banging and she opened the door. Mr. Bowan, armed with a handgun, accused the woman of infidelity. He punched her in her chest and proceeded to assault her anally, orally, and vaginally. He did this while also threatening to kill her, dismember her body, and bury it in pieces.
Mr. Bowman did not object to the trial court’s instructions to the jury. The trial court instructed the jury on first-degree forcible sexual offense, but it did not separate the two counts of this offense by specific instances on the verdict sheet that was presented to the jury. Nevertheless, the jury found Mr. Bowman guilty of two counts of first-degree forcible sexual offense. The trial court entered a consolidated judgment and imposed an active prison sentence. Mr. Bowman gave notice of appeal. Most recently before the North Carolina Court of Appeals is whether the trial court plainly erred by accepting the two convictions of first-degree forcible sexual offense despite charging on and submitting only one to the jury.
Because the issue regarding the jury instruction was not properly preserved, the appellate Court conducted its review for plain error. In order to establish plain error, the defendant must show that there has been a fundamental error and without that error the jury probably would have returned a different verdict. Also, the defendant must demonstrate that the error effects the fairness, integrity, or public reputation of judicial proceedings.
In his request for relief, Mr. Bowan asked the appellate Court to reverse one of the first-degree forcible sexual offense convictions, vacate the judgment of the trial court, and remand the case for resentencing. The Court based its analysis on prior case law. Namely, State v. Bowen, 139 N.C. App.18, 533 S.E.2d 248 (2000), where it can be found that when the trial court does not submit to the jury one or more counts in the indictment, the trial court has essentially dismissed those charges that were not submitted. It runs counter to the principle of fairness to accept a guilty verdict on a count not submitted to the jury.
The North Carolina Court of Appeals ruled that Mr. Bowman had established plain error. According to the Court, the trial court plainly erred by accepting two convictions of first-degree forcible sexual offense having only instructed on and submitting one count to the jury. The consolidated judgment of the trial court was vacated and the case was remanded to arrest judgment on one count and resentence on the other count.
This case illustrates the importance of carefully reviewing proposed jury instructions and making timely objections when necessary. Similarly, as the trial court is instructing the jury, it is also vital to be aware of any discrepancies and raise objections or ask to be heard should the need arise. Finally, play close attention to the verdict sheets that are submitted to counsel prior to the jury’s deliberation. Take time to make sure that the verdict sheet matches the jury instructions and what the trial court actually charged the jury.
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