In October of 2026, the North Carolina Supreme Court filed its opinion in State of North Carolina v. Philip Anthony Montanino (165A24). Mr. Montanino was convicted by a Durham County jury of first degree murder under the felony murder rule and sentence to life imprisonment without the possibility of parole. The case came before the Supreme Court as a result of a dissent in the Court of Appeals prior to the repeal of N.C.G.S. §7A-30(2) and the State’s petition for discretionary review. In the Supreme Court’s opinion that upholds the decision of the trial court, we also find two concurring opinions.
In early 2018, Mr. Montanino met the victim while he was seeking treatment for his substance abuse addiction. The substances of choice for Mr. Montanino were crack cocaine and alcohol. The victim, who also suffered from alcohol addiction, worked at the facility where Mr. Montanino sought treatment. At the time the two met, the victim’s struggles with alcohol were beginning to worsen. She was fired from her job at the treatment facility when she showed up for work intoxicated. Losing her job caused the victim’s addiction issues to spiral further. At this time, Mr. Montanino also relapsed. Mr. Montanino and the victim began drinking together to the point where they both would pass out.
In late June of 2018, the victim’s daughter received a voicemail from the victim’s phone but with the message left by a male voice. The daughter attempted to return the call but she never received a response. A few days later, the daughter called 911 and requested that the police conduct a welfare check at the victim’s apartment. Upon arrival and after performing a sweep of the premises, the law enforcement officers discovered the victim’s lifeless body wedged between her bed and the wall. A homicide detective was then called to the scene.
The homicide detective discovered that the victim’s Suzuki SUV was missing from the parking area. Neighbors informed the detective that they heard the victim and Mr. Montanino arguing about the SUV. The detective was able to collect sufficient evidence to obtain a warrant for Mr. Montanino’s arrest. Law enforcement located Mr. Montanino in Chapel Hill and the SUV was discovered nearby. During the arrest, Mr. Montanino asked the officers, “Is she dead?”
Detectives found the victim’s debit card and expired driver’s license in Mr. Montanino’s wallet. They also discovered that Mr. Montanino had pawned the victim’s cell phone the day before. A forensic investigation discovered Mr. Montanino’s fingerprints throughout the victim’s apartment. The victim’s blood was also on shorts that Mr. Montanino was wearing at the time of his arrest. The medical examiner concluded that the victim died from multiple blunt force injuries.
Mr. Montanino went on trial for first-degree murder in November of 2021. Mr. Montanino made motions to dismiss based on insufficient evidence at the close of the State’s evidence and at the close of all evidence. Both motions were denied by the trial court. At the beginning of instructing the jury, the trial court told the jury: “Under the law and evidence in this case[.] it is your duty to return one of the following verdicts: Guilty of first degree murder, or guilty of second degree murder, or, guilty of voluntary manslaughter, or not guilty.” During its charge to the jury, the trial court instructed the jury on first-degree murder based on malice, premeditation, and deliberation and under the felony murder rule. The underlying felony for the application of the felony rule was the larceny of the victim’s SUV. After the jury was charged on first-degree murder, the jury was instructed that if it does not find, or has reasonable doubt as to, any of the elements, it will “not return a verdict of guilty” as to either theory. The jury was also instructed on the lesser included offenses of second-degree murder and voluntary manslaughter. Neither party object to the jury instructions. As to first-degree murder, the jury verdict sheet was completed by the jury after deliberations as follows:
- Guilty of First Degree Murder
ANSWER: Yes
IF YOU ANSWER “YES”, IS IT:
- On the basis of malice, premeditation, and deliberation?
ANSWER: No
- Under the first degree felony murder rule?
ANSWER: Yes
If you find the Defendant Guilty of First Degree Murder stop here.
Neither party objected to the jury verdict sheet. The jury returned a verdict of guilty of first-degree murder under felony murder. The jury was polled. Mr. Montanino was sentenced to life without the possibility of parole. Mr. Montanino gave oral notice of appeal.
At the Court of Appeals, Mr. Montanino argued that the trial court erred by not including on the jury verdict sheet a space for the jury to indicate “not guilty.” He also argued that his murder conviction based on felony murder must be set aside based on insufficiency of the evidence. His first argument was rejected but the appeals Court agreed with him on the second.
Because Mr. Montanino did not object to the jury instruction or the jury verdict, the appeals Court reviewed his first argument for plain error. The Court of Appeals majority concluded that the absence of a “not guilty” space on the jury verdict sheet did not constitute plain error. In so reasoning, the majority was of the opinion that the jury probably would not have reached a different result even if the jury verdict sheet did contain a space for “not guilty.” A judge on the panel dissented. The dissenting judge found it significant that the trial court had not specifically instructed the jury to find the defendant “not guilty” as to the first-degree murder theories if it did not find, or had a reasonable doubt as to any of the elements. The dissent concluded that it “would hold the instructions and verdict sheet require a new trial since the instructions and the jury verdict sheet did not direct the jury to find Defendant ‘not guilty’ of each theory of murder if not convinced beyond a reasonable doubt of guilt.”
The Court of Appeals agreed that the State had not proven that the value of the victim’s SUV was over $1,000 which is the required amount for felony larceny. The Court of Appeals concluded that because the felony larceny was the only underlying felony that served as the basis for Mr. Montanino’s first-degree murder conviction, that conviction should be reversed.
In its 2024 opinion, The North Carolina Court of Appeals reversed the judgment of the trial court and remanded the case. The State and Mr. Montanino both filed notice of appeal based on the dissent. The State also filed a petition for discretionary review. In June of 2025, the State’s petition for discretionary review was allowed and the case was heard in The North Carolina Supreme Court in April of 2026.
Mr. Montanino’s appeal was based on the conclusion that the trial court’s failure to include a “not guilty” instruction as to the first-degree murder charge and a “not guilty” space on the jury verdict sheet did not constitute plain error. The State appealed the conclusion that it failed to provide sufficient evidence to support the underlying felony of felony larceny in furtherance of Mr. Montanino’s first-degree murder conviction under the felony murder rule.
Mr. Montanino faced two barriers to the Court’s review of his appellate issue. Because he did not object to the jury instruction or the jury verdict sheet, the errors were not preserved for appellate review. Therefore, the Court’s review was for plain error. Furthermore, because the appeal arose due to a dissent in the Court of Appeals, the Supreme Court’s review is limited to only those issues raised in the dissent. Cryan v. Nat’l Councils of YMCA’s of the U.S., 384 N.C. 569, 574 (2023). In its plain error analysis, the Court seemed puzzled, perhaps almost troubled, by the fact that the Court of Appeals did not discuss or even reference State v. Reber, 386 N.C. 153 (2024). Reber, which clarifies plain error review, was published before the Court of Appeals decision in Mr. Montanino’s case. The Reber court emphasized the three-factor test applicable to plain error review. The defendant must first show that a fundamental error occurred at trial. Second, the defendant must show that the error had a “probable impact” on the outcome. That is, absent the error, the jury probably would have returned a different verdict. Third, the defendant must show that the error is an “exceptional case” in that the error seriously effects “the fairness, integrity or public reputation of judicial proceedings.” State v. Lawrence, 365 N.C. 506, 518 (2012). The Reber court took great pain to clarify the second prong of the plain view test because in its view, that prong has created the most interpretation challenges. According to Reber, a result that probably will occur is one that is “almost certainly the expected outcome.” Id. at 159.
Mr. Montanino argued that the jury instruction along with the jury verdict sheet suggested to the jury that it “should find” that he committed murder under at least one of the first-degree murder theories. Mr. Montanino asserted that this error was prejudicial. The Court pointed out that it had not previously applied plain error review to a jury verdict sheet. Plain error review in North Carolina is normally limited to instructional and evidentiary error and the jury verdict sheet alone is not a part of the instructional or evidentiary process. The jury verdict sheet serves as a guide to the deliberation process. The Court did note that it has become common to include instructions to the jury in the verdict sheet and the question becomes whether the sheet is instructional in nature when it contains language that may reinforce erroneous jury instructions.
When applying the standards set forth in Reber, the Court determined that Mr. Montanino had not demonstrated prejudice under the plain error standard. The Court concluded that a reasonable juror would not take the trial court’s instruction to suggest that a guilty verdict as to either theory of first-degree murder was required. The jury verdict sheet allowed the jury to find Mr. Montanino “not guilty” by indicating “No” to each charge listed. The Court also concluded that the evidence presented at trial was in line with the jury’s verdict. Even a slight alteration in the jury instructions and the jury verdict sheet would not have changed the outcome of Mr. Montanino’s trial. The North Carolina Supreme Court affirmed the decision of the majority of the Court of Appeals as to the plain error issue.
There was a concurring opinion by one of the Justices on the Supreme Court on the plain error issue. The concurring opinion characterizes the opinion offered by the majority as a questionable advisory opinion on the issue of prejudice. This Justice sees this case as an opportunity for the Supreme Court to “harmonize” the questions about jury verdict sheets. The concurrence agrees with the result but dissents from the portion of the majority opinion that suggests plain error review may extend beyond instructional or evidentiary error.
At the close of the State’s evidence and at the close of all evidence, Mr. Montanino moved to dismiss for insufficiency of the evidence. The appellate Court must determine whether in the light most favorable to the State, there is substantial evidence of each essential element of the offense charged or of a lesser included offense and if the defendant is the perpetrator of such offense. The State is entitled to the benefit of all reasonable inferences. State v. Finch, 351 N.C. 373, 378-79 (2000). The evidence may come in the form of direct evidence or circumstantial evidence.
Mr. Montanino argues that the holding of the Court of Appeals should be affirmed because the State did not prove the dollar amount of the stolen SUV for the purpose of demonstrating a felony larceny. In State v. Childress, 321 N.C. 226 (1987), the Court adopted the view that jurors may employ their common sense when sitting in judgment in of a criminal case. Thus, a rigid requirement that the State must always offer direct evidence of the value of an item is not a sound legal principle. The Court held that direct evidence of value is not required when the property is so ubiquitous that the average juror can determine its statutory value with a high degree of certainty by using their own common sense. Here, the evidence presented showed that the SUV seated four passengers, was operable, in good condition, and only six years old. The jury could infer from their own life experiences that the value of the SUV was at least more that one thousand dollars. The Court concluded that the trial court correctly dismissed Mr. Montanino’s motions to dismiss. The portion of judgment by the Court of Appeals that held the State provided insufficient evidence to prove the underlying offense of felony larceny in support of the conviction of first-degree murder was thereby reversed.
There was also a concurring opinion to this portion of the Court’s decision. The concurring opinion was concerned that this reasoning by the majority could potentially create a slippery slope where the State does not feel it necessary to present direct evidence of the value of property when such value is at issue. The concurrence emphasized that this holding should be viewed narrowly and only applicable to the set of facts presented in this case. The opinion of the majority should not be interpreted as relieving the State of its duty to provide evidence of the value of stolen property in criminal cases.
In sum, The North Carolina Supreme Court affirmed the portion of the Court of Appeals’ ruling that held that the trial court did not commit plain error in its jury instructions and in its jury verdict sheet. The Court reversed the portion of the Court of Appeals’ judgment that held that the State presented insufficient evidence of the value of property necessary to support the underlying felony of felony larceny in the conviction of first-degree murder based on the felony murder rule. The remand by the Court of Appeals was reversed and Mr. Montanino’ conviction was upheld.
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