IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-714

Filed: 4 February 2020

Davidson County, Nos. 16 CRS 21–24

STATE OF NORTH CAROLINA

v.

MOLLY MARTENS CORBETT and THOMAS MICHAEL MARTENS

Appeal by defendants from judgments entered 9 August 2017 and order 

entered 4 December 2017 by Judge W. David Lee in Davidson County Superior Court. 

Heard in the Court of Appeals 31 January 2019.

Attorney General Joshua H. Stein, by Special Deputy Attorneys General 

Jonathan P. Babb and L. Michael Dodd, for the State.

Tharrington Smith, LLP, by Douglas E. Kingsbery and Melissa H. Hill, for 

defendant-appellant Molly Martens Corbett.

Crumpler Freedman Parker & Witt, by David B. Freedman, Jones P. Byrd, Jr.,

and Dudley A. Witt, for defendant-appellant Thomas Michael Martens.

ZACHARY, Judge.

Defendants Molly Martens Corbett (“Molly”) and Thomas Michael Martens

(“Tom”), daughter and father, appeal from judgments entered upon a jury’s verdicts 

finding them guilty of second-degree murder in the death of Jason Corbett (“Jason”), 

Molly’s husband. Defendants also appeal the trial court’s order denying their Motion 

for Appropriate Relief alleging juror misconduct. After careful review, we affirm the

order denying Defendants’ Motion for Appropriate Relief. However, due to a number 
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2

of prejudicial errors apparent within the record, we reverse the judgments entered 

upon Defendants’ convictions for second-degree murder and remand for a new trial.

Although Defendants raise 13 issues on appeal—many of which are 

interconnected and complex—this case is deceptively simple, boiling down to whether 

Defendants lawfully used deadly force to defend themselves and each other during 

the tragic altercation with Jason. Having thoroughly reviewed the record and 

transcript, it is evident that this is the rare case in which certain evidentiary errors, 

alone and in the aggregate, were so prejudicial as to inhibit Defendants’ ability to 

present a full and meaningful defense. Moreover, the trial court erred in instructing 

the jury on the aggressor doctrine as to Tom, given the absence of evidence to support 

such an instruction. 

Because these errors are dispositive and warrant a new trial, we need not 

address the additional issues raised by Defendants. 

I. Background

Jason originally lived in Ireland with his first wife, Margaret, and their two 

children, Jack and Sarah. After Margaret died unexpectedly in 2004, Jason hired 

Molly to work as an au pair. Jason and Molly later began a romantic relationship, 

and in 2011, they moved with the children to Davidson County, North Carolina. 

Jason and Molly married later that year. 

A. The Altercation
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On 1 August 2015, Molly’s parents, Tom and Sharon Martens, traveled from 

their home in Knoxville, Tennessee, to visit the Corbetts in Davidson County. Tom, 

an attorney and retired FBI agent, packed an aluminum Little League baseball bat 

and a tennis racket as gifts for Jack. When Tom and Sharon arrived at the Corbetts’ 

home at around 8:30 p.m., Jason was in the driveway, drinking a beer with a

neighbor, and he walked over to greet Tom and Sharon. That evening, Tom, Sharon, 

Jason, Molly, and Sarah had dinner together while Jack attended a party. Jack came 

home at around 11:00 p.m. Because of the late hour, Tom decided not to give Jack 

the bat and tennis racket that night.

Tom and Sharon slept in the guest room, which was located just below the 

bathroom that adjoined Jason and Molly’s bedroom. Late in the night, Tom was 

awakened by noises, including “a scream and loud voices,” above their bedroom.

Wearing only a golf shirt and boxer shorts, Tom jumped out of bed, grabbed the Little 

League bat that remained with his luggage by the bed, and rushed upstairs. 

Once he arrived upstairs, Tom determined that the noises were coming from 

Jason and Molly’s bedroom. When Tom opened the bedroom door, Molly and Jason 

were facing each other, and Jason had his hands around Molly’s neck. As Tom 

entered and closed the door behind him, Jason quickly removed his hands from 

Molly’s neck, and shifted her into a tight chokehold with her neck in the crook of his 

right arm, and her body positioned between himself and Tom.
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Tom repeatedly told Jason, “Let her go”; Jason repeatedly responded, “I’m 

going to kill her.” Jason began to move down the hall toward the bathroom, dragging 

Molly with him. Tom feared that if Jason took Molly into the bathroom and closed

the door, Tom would be unable save her, and “that would be the end of that.” To

impede Jason’s progress down the hall, Tom swung the baseball bat at “the back of 

the two of them glued together”—hitting Jason in the back of the head, while carefully 

avoiding Molly. Jason did not “go down” or even waver, and it seemed to Tom that 

the blow only “further enraged” Jason. Nevertheless, Tom continued to hit Jason “as 

many times as [he] could to distract him because he now had Molly in a very tight 

chokehold,” and “she was no longer wiggling.”

Despite Tom’s efforts, Jason successfully pulled Molly into the bathroom. Tom 

was close behind them, however, and Jason was unable to close the door. Tom had 

more room to maneuver inside of the bathroom than in the hallway, and he was able 

to hit Jason in the head with the bat again. Yet these efforts “didn’t seem to have 

any effect.” 

Jason forced his way out of the bathroom, into the hallway, and back into the 

bedroom, pushing Molly and Tom along as he went. The affray resumed in the 

bedroom. Tom swung the bat at Jason, who caught the bat in his left hand, enabling

Molly to break free from Jason’s chokehold. While Tom and Jason were struggling 

for possession of the bat, Jason “punche[d]” his hand out and shoved Tom across the 
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width of the bed, and Tom fell face first onto the floor. As he lay facedown on the 

floor, Tom heard Molly scream, “Don’t hurt my dad.” 

When Tom got up, he saw Jason holding the bat, standing in “a good athletic 

position . . . looking between [Tom] and Molly.” Seeing that Molly was “trapped” 

between the wall and the bed, Tom “rush[ed]” Jason to “try to get ahold of the bat.” 

Tom and Jason renewed their struggle for control of the bat, and at some point, Molly 

picked up a brick paver that was sitting on her nightstand and used it to strike Jason. 

Tom managed to regain control of the bat. By this point, he was “shaking” and 

physically weak from the altercation. However, because Tom remained afraid that 

Jason might regain control of the bat and again attempt to kill him or Molly, Tom 

continued hitting Jason until he was down, and Tom felt certain that Jason “could 

not kill” them. 

Shortly thereafter, Tom called 911 and told the operator, “My, my, uh, 

daughter’s husband, uh, my son-in-law, uh, got in a fight with my daughter, I 

intervened, and I, I think, um, and, he’s in bad shape. We need help. . . . He, he’s 

bleeding all over, and I, I may have killed him.” With the 911 operator’s guidance, 

Molly and Tom took turns administering CPR to Jason until the emergency medical 

crew arrived. 

B. The Investigation
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Davidson County EMS paramedics arrived at the scene within ten minutes of 

receiving the 911 call. One paramedic quickly determined that Jason had suffered 

“severe heavy trauma to the back of the head.” While attempting to lift Jason’s chin 

in order to prepare him for intubation, all of the paramedic’s left “fingers went inside 

the skull.”

Inside of the house, first responders observed a significant amount of blood on 

the floor and walls of the bedroom, dry blood on portions of Jason’s body, and a brick 

paver on the bedroom floor. Deputies from the Davidson County Sheriff’s Office 

retrieved the children from their bedrooms, where they found Sarah and Jack asleep 

and undisturbed.

Meanwhile, Deputy David Dillard escorted Molly to his patrol car, where she 

remained for approximately one hour. In his written report of the incident, Deputy 

Dillard noted that Molly was “very obviously in shock.” He recalled that Molly “was 

making crying noises but [he] didn’t see any visible tears. She was also rubbing her 

neck. . . . It wasn’t a constant. She would do it and stop and do it and then stop while 

continuing to make the crying noises.” 

Molly was “in the fetal position” on the ground beside Deputy Dillard’s car 

when two paramedics approached to examine her. Both paramedics observed redness 

on Molly’s throat, and when one of them asked Molly whether her neck hurt, she said 

yes, and stated that she had been choked. Aside from Molly’s symptoms of shock and 
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the redness and soreness to her throat, none of the first responders observed any

apparent injuries to either Molly or Tom. 

Lieutenant Frank Young, III, arrived on the scene later, and took photographs 

of Jason’s body. One of the photographs depicted Jason’s right hand with a long 

blonde hair in his palm. 

Later that day, Molly submitted the following written statement to the 

Davidson County Sheriff’s Office:

My husband, Jason Corbett, was upset that he awoke and 

an argument ensued with him telling me to “shut up,” (etc.) 

and he applied pressure to my throat/neck and started 

choking me. At some point, I screamed as loud as possible. 

He covered my mouth and then started choking me again 

with his arm. My father, Tom Martens, came in the room 

and I cannot remember if he said something or just hit 

Jason to get him off me. Jason grabbed the bat from him 

and I tried to hit him with a brick (garden decor) I had on 

my nightstand. I do not remember clearly after that.

On 3 August 2015, a medical examiner at the North Carolina Office of the Chief 

Medical Examiner performed an autopsy and determined Jason’s cause of death to 

be blunt force head trauma, including “extensive skull fractures” and “two large, 

branched, full-thickness lacerations of bilateral parietal scalp,” arising from multiple 

blows to the head. The medical examiner found that one laceration on Jason’s head 

“ha[d] an appearance of a postmortem injury.” He also noted that Jason had a blood 

alcohol level of 0.02% and tested positive for low levels of an antidepressant 

medication known to have sedative effects. 
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That day, Sarah and Jack were staying with Molly’s brother in Union County

when they were visited by a social worker from the Union County Department of 

Social Services (“DSS”). Pursuant to a request from the Davidson County Sheriff’s 

Office, the social worker conducted separate interviews of the children, inquiring 

about issues including domestic violence and familial relationships. During his 

interview, Jack reported that “his dad gets mad at his mom [Molly] for no good 

reason.” He also shared that once, he was accidentally pushed down the stairs while 

attempting to intervene in a fight between Jason and Molly. Sarah similarly stated 

during her interview that “her dad is angry on a regular basis,” and she described an 

incident when Jason pulled Molly’s hair and “smacked her in the face.” 

Upon the referral of Davidson County DSS, on 6 August 2015, four days after 

Jason’s death, Jack and Sarah received child medical evaluations at the Dragonfly 

House Children’s Advocacy Center in Mocksville, North Carolina. Davidson County 

Sheriff’s Detectives Mark Hanna and Nathan Riggs observed the forensic medical

interview portions of the children’s separate, two-part child medical evaluations. 

Prior to the interviews, Detectives Hanna and Riggs met with the other members of 

the children’s multi-disciplinary team and submitted the following list of questions 

related to the investigation of Jason’s death, which they wanted the interviewer to 

ask the children:

QUESTIONS FOR KIDS –
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1. FIND OUT ABOUT DV IN HOME. 

IS JACK AFRAID OF DAD. DO KIDS LIKE/HATE 

MOLLY.

2. FIND OUT ABOUT PAVER IN BEDROOM

3. ASK ABOUT NIGHTMARE THAT WOKE HER UP.

4. ASK ABOUT HOW THE “EMERGENCY #”

– WHY WAS IS [sic] SETUP – WHO SETUP – WHEN

– WHO WROTE#.

5. ASK WHERE G-MOM + G-DAD USUALLY SLEEP 

WHEN THEY STAY

6. ASK IF DAD EVER MENTIONED A TRIP TO 

IRELAND THIS MONTH

7. ASK ABOUT RELATIONSHIP W/ MOLLY

8. ASK ABOUT SARAH’S SLEEPING IN BED W/MOLLY 

[illegible] DAD.

During his interview, Jack described how Jason often got angry with Molly 

over “simple things” such as “bills” and “leaving lights on.” Jack stated that Jason 

“physically and verbally hurt” Molly, and that he had personally witnessed occasions 

when Jason punched, hit, and pushed her. According to Jack, Jason’s anger problems 

had “gotten worse over the past few months.”

In addition, Jack explained that the brick paver was present in the master 

bedroom because Molly and the children “were going to paint it, because [they] just . 

. . got flowers that [they] were going to plant in [their] front yard or back yard[.]” Jack 

further explained, however, that it had been raining, and they did not want the brick 

paver “getting all wet. So [they] brought it inside, and [Molly] put it at her desk.”

Like Jack, Sarah similarly stated during her interview that Jason would get 

angry for “ridiculous reasons,” such as when he was inadvertently awakened from 
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10

sleep at night. Sarah explained that she sometimes had nightmares and would come 

to Molly for comfort, but that Jason would get “very angry” if she accidentally woke 

him up. Sarah described one such incident that occurred in the middle of the night 

that Jason died. That night, Sarah had a nightmare involving the fairies on her 

bedsheets, and she went to Jason and Molly’s bedroom and asked Molly to change her 

sheets. When Molly got out of bed to go to Sarah’s bedroom, Jason became angry, 

and the ensuing argument between Molly and Jason eventually led to the deadly 

affray in this matter.

C. Defendants’ Trial

On 18 December 2015, a grand jury indicted Molly and Tom for second-degree 

murder and voluntary manslaughter. Defendants pleaded not guilty, and a joint trial 

was set for 17 July 2017 in Davidson County Superior Court, the Honorable W. David 

Lee, judge presiding.

By the time of trial, Jack and Sarah were in the custody of Jason’s family in 

Ireland, and thus, beyond the subpoena power of the trial court. Accordingly, prior to 

trial, Defendants moved to admit the children’s hearsay statements from their 

interviews conducted (1) by the Union County DSS social worker on 3 August 2015,

and (2) at the Dragonfly House on 6 August 2015, pursuant to N.C. Gen. Stat. § 8C1, Rule 803(4), the medical diagnosis or treatment exception, or in the alternative, 

Rules 803(24) and 804(b)(5), the residual exceptions. Following a hearing on 8 and 9 
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June 2017, the trial court decided to defer its ruling on Defendants’ motion until trial. 

Ultimately, although the trial court found that both children were unavailable to 

testify, it nonetheless denied Defendants’ motion to admit the children’s hearsay 

statements following Tom’s testimony during Defendants’ case-in-chief.

At trial, the State relied heavily upon forensic evidence, including photographs 

of Jason’s body and the undeniably violent fight scene, as well as the testimony of 

first responders and law enforcement officers who were present that night. The State 

also presented significant medical evidence, including testimony from the medical 

examiner and Jason’s medical records from Kernersville Primary Care, which 

established that two weeks before his death, during a 16 July 2015 appointment, 

Jason reported that he had been feeling dizzy and “more stressed and angry lately for 

no reason.”

When the State proffered an expert witness in bloodstain pattern analysis, 

Defendants requested voir dire, challenging the reliability of the witness’s 

conclusions regarding certain evidence that the State had not submitted to the North 

Carolina State Crime Laboratory for blood or DNA testing. Following voir dire, the 

trial court ruled that the testimony was sufficiently reliable under N.C. Gen. Stat. § 

8C-1, Rule 702(a), and admitted the witness’s testimony over Defendants’ objections 

at trial.
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At the charge conference, Defendants requested that the trial court remove all 

aggressor language from the proposed pattern jury instructions, arguing that there 

was no evidence “that anyone was the aggressor but Jason.” The State had “no 

objection” to the trial court’s “declining to instruct on the aggressor issue as to” Molly, 

but argued that there was “conflicting evidence” in Tom’s case, which could 

reasonably be interpreted to support that he was the aggressor. Following detailed 

arguments from the parties, the trial court ruled, as a matter of law, that Molly was 

not an aggressor, and properly omitted all aggressor language from the proposed 

pattern instructions in her case. As to Tom, however, the trial court ruled in the 

State’s favor, and accordingly, instructed the jury on the aggressor doctrine in his 

case.

The State also requested that the trial court instruct the jury that it could find

Molly guilty under an acting-in-concert theory, if it found that she was present during 

the incident and acted with Tom in pursuit of a common plan or purpose. The trial 

court delivered the State’s requested instruction, over Defendants’ objections.

On 9 August 2017, the jury returned verdicts finding Defendants guilty of 

second-degree murder. That day, the trial court entered separate judgments

sentencing Defendants to 240-300 months each in the custody of the North Carolina 

Division of Adult Correction. Defendants gave oral notice of appeal in open court.
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On 16 August 2017, Defendants filed a joint Motion for Appropriate Relief 

asserting that they were entitled to an evidentiary hearing and ultimately, a new 

trial, due to alleged juror misconduct. On 4 December 2017, the trial court entered 

an order denying Defendants’ Motion for Appropriate Relief, which Defendants 

timely appealed to this Court.

II. Motion for Appropriate Relief

We first address Defendants’ challenge to the trial court’s order denying their 

Motion for Appropriate Relief. Defendants contend that the trial court erred by 

failing to grant, or conduct an evidentiary hearing on, Defendants’ requests to set 

aside the jury verdicts and judgments and grant them a new trial, “because 

competent evidence demonstrates frequent juror misconduct prejudicial to the 

defense and harmful to the judicial system.” We disagree.

A. Standard of Review

On appeal, we review a trial court’s order denying a motion for appropriate 

relief “to determine whether the findings of fact are supported by evidence, whether 

the findings of fact support the conclusions of law, and whether the conclusions of law 

support the order entered by the trial court.” State v. Frogge, 359 N.C. 228, 240, 607 

S.E.2d 627, 634 (2005) (quotation marks and citation omitted). “When a trial court’s 

findings on a motion for appropriate relief are reviewed, these findings are binding if 

they are supported by competent evidence and may be disturbed only upon a showing 
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of manifest abuse of discretion.” State v. Wilkins, 131 N.C. App. 220, 223, 506 S.E.2d 

274, 276 (1998) (citation omitted). “Abuse of discretion results where the court’s 

ruling is manifestly unsupported by reason or is so arbitrary that it could not have 

been the result of a reasoned decision.” State v. Elliott, 360 N.C. 400, 419, 628 S.E.2d 

735, 748, cert. denied, 549 U.S. 1000, 166 L. Ed. 2d 378 (2006). “However, the trial 

court’s conclusions are fully reviewable on appeal.” Wilkins, 131 N.C. App. at 223, 

506 S.E.2d at 276.

B. N.C. Gen. Stat. § 15A-1414

“After the verdict but not more than 10 days after entry of judgment,” a 

criminal defendant may “by motion . . . seek appropriate relief for any error 

committed during or prior to the trial.” N.C. Gen. Stat. § 15A-1414(a) (2019). See 

generally id. §§ 15A-1414, -1415 (setting forth the errors that may be asserted, as well 

as the time limitations upon, a criminal defendant’s motion for appropriate relief 

made in the trial division). However, once the 10-day, post-judgment period expires, 

the only errors from which a defendant may seek appropriate relief in the trial court 

are those specifically enumerated in N.C. Gen. Stat. § 15A-1415. Id. § 15A-1414(b); 

see also id. § 15A-1415.

Whether the trial court must conduct an evidentiary hearing before ruling on 

a motion for appropriate relief depends upon a number of factors, including when the 

motion was filed; the complexity of the issues presented, as well as the trial court’s 
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familiarity with the underlying record; and whether the allegations involve questions 

of law or fact. See id. § 15A-1420(c)(1)-(4). No evidentiary hearing is required “when 

the motion is made in the trial court pursuant to [N.C. Gen. Stat. §] 15A-1414, but 

the court may hold an evidentiary hearing if it is appropriate to resolve questions of 

fact.” Id. § 15A-1420(c)(2). 

Accordingly, where the defendant moves the trial court for appropriate relief 

within 10 days following entry of judgment, the decision of whether to hold “an 

evidentiary hearing is . . . within the sound discretion of the trial court.” Elliott, 360 

N.C. at 419, 628 S.E.2d at 748. “[I]f the trial court can determine from the motion 

and any supporting or opposing information presented that the motion is without 

merit, it may deny the motion without any hearing either on questions of fact or 

questions of law, including constitutional questions.” Id. (original emphasis and 

citations omitted). We review the trial court’s decision to deny “an evidentiary 

hearing for abuse of discretion.” Id. (citation omitted).

C. Defendants’ Motion for Appropriate Relief

In the instant case, after the jury returned verdicts on 9 August 2017 finding 

Defendants guilty of second-degree murder, the trial court proceeded to enter 

separate judgments and sentences upon Defendants’ convictions. Defendants 

entered oral notice of appeal in open court.
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Seven days later, on 16 August 2017, Defendants filed a Motion for Appropriate 

Relief alleging juror misconduct and violations of their constitutional rights, and 

requesting that the trial court “set an evidentiary hearing, set aside the jury’s 

verdict[s] and grant [Defendants] a new trial.” In support of their motion, Defendants 

submitted affidavits and exhibits, including (1) printouts from Facebook on 10 August 

2017 showing various individuals discussing the details of Defendants’ trial, and a 

few former jurors sharing their personal experiences and opinions about the case; and 

(2) an 11 August 2017 report featuring coverage of Defendants’ case and trial in that 

evening’s upcoming episode of ABC News “20/20.”

In the State’s Response to Defendants’ Motion for Appropriate Relief, filed 21 

August 2017, the State asserted that Defendants’ allegations of juror misconduct 

were “speculative” and could not be proved by admissible evidence; accordingly, the 

State requested that the trial court deny Defendants’ motion without conducting an 

evidentiary hearing. On 25 August 2017, Defendants filed a Supplemental Motion 

for Appropriate Relief and Reply to State’s Response, and submitted additional 

supporting affidavits and exhibits including, inter alia, affidavits from two 

individuals who attested to having witnessed pre-deliberation conversations between 

jurors. The State filed a response to Defendants’ Supplemental Motion for 

Appropriate Relief on 8 September 2017.
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Without conducting an evidentiary hearing, on 4 December 2017, the trial 

court entered an order denying Defendants’ Motion for Appropriate Relief, 

determining that 

there is neither evidence nor forecast with reasonable 

certainty of evidence that rises above the level of mere 

speculation or conjecture of either (1) any extraneous 

prejudicial information brought to a juror’s attention or (2) 

any outside influence that has violated either defendants’ 

[sic] constitutional right of confrontation brought to bear 

on any juror.

 

In their filings before the trial court, Defendants advanced numerous 

arguments in support of their contention that “frequent juror misconduct prejudicial 

to the defense and harmful to the judicial system” occurred in this case. However, we 

need only address the three arguments raised in Defendants’ briefs with respect to 

this issue. 

On appeal, Defendants contend that the trial court abused its discretion by 

denying their Motion for Appropriate Relief, as well as their request for an 

evidentiary hearing, because (1) competent evidence demonstrated that certain jurors 

“committed gross and pervasive misconduct in their private discussions of the case”; 

(2) jurors engaged in “private discussions” amongst themselves prior to deliberations, 

thereby violating Defendants’ constitutional right to trial by a jury of twelve qualified 

jurors; and (3) several jurors’ statements during post-trial media interviews evinced 
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that they improperly considered and formed opinions about Molly’s mental health, 

although that issue was not in evidence.

After careful review, we agree with the State that the trial court did not abuse 

its discretion by denying Defendants’ Motion for Appropriate Relief without 

conducting an evidentiary hearing. Defendants’ allegations of juror misconduct are, 

at best, general, speculative, and conclusory. Furthermore, we conclude that even if 

the trial court were to hold an evidentiary hearing on Defendants’ § 15A-1414 

motion—which it is not required to do, see N.C. Gen. Stat. § 15A-1420(c)(2)—

precedent prohibiting verdict impeachment would bar Defendants from presenting 

any admissible evidence to prove the truth of their allegations. 

The proscription against impeachment of a jury verdict “is well settled in North 

Carolina.” State v. Cherry, 298 N.C. 86, 100, 257 S.E.2d 551, 560 (1979), cert. denied, 

446 U.S. 941, 64 L. Ed. 2d 796 (1980). “[A]fter a verdict has been rendered and 

received by the court, and jurors have been discharged, jurors will not be allowed to 

attack or overthrow their verdict, nor will evidence from them be received for such 

purpose.” Id.

The purpose of the “no-impeachment rule” is “to promote freedom of 

deliberation, stability and finality of verdicts, and protection of jurors against 

annoyance and embarrassment.” Cummings v. Ortega, 365 N.C. 262, 267, 716 S.E.2d 

235, 239 (2011), cert. denied, 566 U.S. 993, 182 L. Ed. 2d 1029 (2012). This rule has 
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been codified under N.C. Gen. Stat. § 8C-1, Rule 606(b), and N.C. Gen. Stat. § 15A1240(a). As our Supreme Court has observed, “Rule 606(b) reflects the common law 

rule that affidavits of jurors are inadmissible for the purposes of impeaching the 

verdict except as they pertain to extraneous influences that may have affected the 

jury’s decision.” Cummings, 365 N.C. at 267, 716 S.E.2d at 239 (internal quotation 

marks omitted). See also State v. Lyles, 94 N.C. App. 240, 246, 380 S.E.2d 390, 394 

(1989) (“[T]he exceptions to the anti-impeachment rule listed in Section 15A-1240 are 

designed to protect the same interests as, and are entirely consistent with, the 

exceptions in Rule 606(b).”).

Whether evidence may be utilized to impeach a verdict depends upon whether 

jurors were subjected to “external” or “internal” influences. External influences, 

“which generally are admissible to prove the invalidity of a verdict,” may “include 

information dealing with the defendant or the case which is being tried, which 

reaches a juror without being introduced in evidence.” Cummings, 365 N.C. at 269, 

716 S.E.2d at 240 (internal quotation marks, ellipsis, and citation omitted). By 

contrast, “internal influences” include “information coming from the jurors 

themselves—the effect of anything upon a juror’s mind or emotions as influencing 

him to assent to or dissent from the verdict or indictment or concerning his mental 

processes in connection therewith.” Id. “Internal influences may include: a juror not 

assenting to the verdict, a juror misunderstanding the instructions of the court, a 
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juror being unduly influenced by the statements of his fellow-jurors, or a juror being 

mistaken in his calculations or judgments.” Id. (internal quotation marks and 

citations omitted). 

In the case at bar, it is evident that any notions developed by the jurors 

regarding Molly’s mental health relate to “internal influences” of the jury. Therefore, 

Rule 606(b) precludes Defendants from presenting juror testimony—or affidavits 

regarding the internal influences of the jury—as a means to impeach the verdicts. 

See Elliott, 360 N.C. at 420, 628 S.E.2d at 748 (concluding that the trial court did not 

abuse its discretion in denying a hearing where the “defendant would have been 

unable to present any evidence which would have strengthened the claims made in 

the motion for appropriate relief”).

Nor do Defendants offer any facts to support that their allegations regarding 

the jurors’ statements concerning Molly’s mental health are based upon anything 

beyond mere speculation or opinion. The interviews appearing on ABC News “20/20,”

in which three jurors made statements that Defendants allege pertained to Molly’s 

mental health, were conducted after the verdicts had been rendered. Notably, 

Defendants fail to identify, or even suggest, any source from which the jurors might 

have improperly gleaned this information prior to rendering a decision at trial. Cf. 

State v. Rollins, 224 N.C. App. 194, 201-02, 734 S.E.2d 634, 636-37 (2012) (holding 

that the trial court did not abuse its discretion by failing to hold an evidentiary 
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hearing on the defendant’s motion that “failed to specify: which news broadcast the 

juror in question had seen besides a possible broadcast summary from the News 14 

Carolina website; the degree of attention the juror . . . had paid to the broadcast; the 

extent to which the juror . . . received or remembered the broadcast; whether the juror 

. . . had shared the contents of the news broadcast with other jurors; and the 

prejudicial effect, if any, of the alleged juror misconduct” (footnote omitted)), aff’d per 

curiam, 367 N.C. 114, 748 S.E.2d 146 (2013).

The no-impeachment rule similarly defeats Defendants’ arguments regarding 

any “private discussions” that allegedly took place between jurors. Again, “Rule 

606(b) of the North Carolina Rules of Evidence bars jurors from testifying during 

consideration of post-verdict motions seeking relief from an order or judgment about 

alleged predeliberation misconduct by their colleagues.” Cummings, 365 N.C. at 270, 

716 S.E.2d at 240-41. The Cummings Court concluded that affidavits tending to show 

that a juror made statements regarding his opinion about the case were inadmissible 

under Rule 606(b) because such statements were internal influences: “Even if [a 

juror] had made up his mind before [the] plaintiff introduced any evidence, this state 

of mind is precisely the type of information that Rule 606(b) excludes. Consequently, 

the affidavits of [two of the jurors] were inadmissible pursuant to Rule 606(b).” Id. at 

271, 716 S.E.2d at 241. 
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Opinion of the Court

22

Here, the no-impeachment rule bars the admission of Defendants’ proffered 

affidavits. Moreover, any evidence regarding pre-deliberation conversations would 

also be inadmissible under Rule 606(b). See N.C. Gen. Stat. § 8C-1, Rule 606(b) (“Nor 

may [a juror’s] affidavit or evidence of any statement by him concerning a matter 

about which he would be precluded from testifying be received for these purposes.”). 

Moreover, the affidavit from the non-juror who attested to having witnessed 

two jurors conversing in a car prior to the jury’s deliberations contains nothing more 

than speculative allegations. See Elliott, 360 N.C. at 420, 628 S.E.2d at 748 (holding 

that the trial court did not abuse its discretion in denying a request for an evidentiary 

hearing where the “defendant failed to make an adequate threshold showing of juror 

misconduct”). Indeed, as Defendants acknowledge in their brief, “the content of this 

conversation is unknown.” By Defendants’ own admission, the only parties who could 

offer evidence regarding the subject and scope of this conversation are the two jurors 

who took part. But as previously explained, their statements would not be admissible 

for that purpose. See N.C. Gen. Stat. § 8C-1, Rule 606(b); N.C. Gen. Stat. § 15A1240(a); cf. Rollins, 224 N.C. App. at 201, 734 S.E.2d at 636 (“Based on the record, 

[the] defendant’s evidence was insufficient to show the existence of the asserted 

ground for relief. There is insufficient evidence to determine whether juror 

misconduct occurred as [the] defendant’s motion and [a fellow juror’s] affidavit merely 
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Opinion of the Court

23

contained general allegations and speculation.” (citations and internal quotation 

marks omitted)).

For the same reasons, Defendants’ argument that the alleged private 

discussion between jurors violated their constitutional right to trial by 12 qualified 

jurors must also fail. See Elliott, 360 N.C. at 418, 628 S.E.2d at 747 (“[T]he 

documentary evidence [the] defendant submitted to support his motion for 

appropriate relief was insufficient to show, by any standard, that juror misconduct 

occurred in the form of private deliberations outside the presence of the other jurors. 

While [the] defendant’s brief characterizes the prayer between the two jurors as 

‘deliberations’ and ‘discussions about the case outside the presence of their ten fellow 

jurors,’ there is nothing in the record that indicates a discussion or deliberation of 

any kind occurred.”).

Even assuming, arguendo, that the affidavits were admissible to prove 

misconduct, Defendants nevertheless fail to indicate the effect—prejudicial or 

otherwise—of the alleged misconduct upon the jury’s verdicts. See N.C. Gen. Stat. § 

15A-1420(c)(6) (“Relief must be denied unless prejudice appears, in accordance with 

[N.C. Gen. Stat. §] 15A-1443.”); see also Cummings, 365 N.C. at 271-73, 716 S.E.2d 

at 241-42 (reversing this Court’s decision upholding the trial court’s grant of a new 

trial due to jury misconduct, despite allegations from multiple jurors that predeliberation statements by one juror “inhibited jurors from engaging in full 
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Opinion of the Court

24

deliberations” and “interfered with [another juror’s] thought process”); Elliott, 360 

N.C. at 419, 628 S.E.2d at 748 (affirming the trial court’s denial of the defendant’s 

“inadequately supported motion for appropriate relief” because the defendant “failed 

to shed light on any prejudice to [the] defendant which arose from [the alleged juror] 

discussions”). 

Absent the required showing of prejudice, we conclude that the trial court did 

not err in denying Defendants’ Motion for Appropriate Relief without conducting an 

evidentiary hearing.

III. Motion to Dismiss

Defendants next argue that the trial court erred by denying their motions to 

dismiss for insufficient evidence the charges of second-degree murder and voluntary 

manslaughter. Defendants contend that this case is analogous to State v. Carter, 254 

N.C. 475, 119 S.E.2d 461 (1961), in which our Supreme Court held, inter alia, that 

“[w]hen the State introduces in evidence exculpatory statements of the defendant 

which are not contradicted or shown to be false by any other facts or circumstances

in evidence, the State is bound by these statements.” 254 N.C. at 479, 119 S.E.2d at

464. Accordingly, Defendants assert that the State failed to present substantial 

evidence to rebut or contradict Molly’s exculpatory handwritten statement 

establishing that Molly and Tom acted in lawful self-defense and defense of others, 

which was introduced by the State and by which the State was bound. We disagree.
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Opinion of the Court

25

“In ruling on a motion to dismiss, the trial court need determine only whether 

there is substantial evidence of each essential element of the crime and that the 

defendant is the perpetrator.” State v. Chekanow, 370 N.C. 488, 492, 809 S.E.2d 546, 

549 (2018) (citation omitted). “Substantial evidence is that amount of relevant 

evidence necessary to persuade a rational juror to accept a conclusion.” Id. The trial 

court “must consider all evidence admitted, whether competent or incompetent, in 

the light most favorable to the State, giving the State the benefit of every reasonable 

inference and resolving any contradictions in its favor.” Id. at 492, 809 S.E.2d at 549-

50 (citation omitted). “Whether the State presented substantial evidence of each 

essential element of the offense is a question of law; therefore, we review the denial 

of a motion to dismiss de novo.” State v. Crockett, 368 N.C. 717, 720, 782 S.E.2d 878, 

881 (2016).

“Second-degree murder is defined as (1) the unlawful killing, (2) of another 

human being, (3) with malice, but (4) without premeditation and deliberation.” State 

v. Arrington, 371 N.C. 518, 523, 819 S.E.2d 329, 332 (2018) (quotation marks and 

citation omitted). By contrast, voluntary manslaughter is defined as “the unlawful 

killing of a human being without malice, express or implied, and without 

premeditation and deliberation.” State v. Rinck, 303 N.C. 551, 565, 280 S.E.2d 912, 

923 (1981). Malice sufficient to support a conviction of second-degree murder is either 

actual, express malice, or acting in a manner “which is inherently dangerous to 
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Opinion of the Court

26

human life . . . [in that it is] so reckless[ ] and wanton[ ] as to manifest a mind utterly 

without regard for human life and social duty and deliberately bent on mischief.” 

State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982). “[T]he burden of 

showing an unlawful killing . . . rest[s] with the State.” Carter, 254 N.C. at 479, 119 

S.E.2d at 464 (citation omitted). 

When a defendant raises a self-defense claim on a motion to dismiss, the State

must “present sufficient substantial evidence which, when taken in the light most 

favorable to the State, is sufficient to convince a rational trier of fact that [the] 

defendant did not act in self-defense.” State v. Kirby, 206 N.C. App. 446, 453, 697 

S.E.2d 496, 501 (2010) (citation and quotation marks omitted). The four elements of 

self-defense are:

(1) it appeared to [the] defendant and he believed it to be 

necessary to kill the deceased in order to save himself from 

death or great bodily harm; and

(2) [the] defendant’s belief was reasonable in that the 

circumstances as they appeared to him at that time were 

sufficient to create such a belief in the mind of a person of 

ordinary firmness; and

(3) [the] defendant was not the aggressor in bringing on the 

affray, i.e., he did not aggressively and willingly enter into 

the fight without legal excuse or provocation; and

(4) [the] defendant did not use excessive force, i.e.[,] did not 

use more force than was necessary or reasonably appeared 

to him to be necessary under the circumstances to protect 

himself from death or great bodily harm.
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Opinion of the Court

27

State v. Presson, 229 N.C. App. 325, 328, 747 S.E.2d 651, 654-55 (citations omitted), 

disc. review denied, 367 N.C. 274, 752 S.E.2d 150 (2013).

Defendants rely heavily on State v. Carter to support their contention that the 

trial court erred by denying their motion to dismiss the second-degree murder 

charges. The salient facts in Carter came entirely from a county sheriff’s testimony. 

At 9:00 p.m. on 7 July 1960, the defendant came to the home of the sheriff and said, 

“I think I have killed my daddy.” Carter, 254 N.C. at 476, 119 S.E.2d at 462. Earlier 

that night, when the defendant’s father came home from work, he noticed that a 

screen door was damaged. He became angry and “jumped on [the defendant’s] 9 and 

1/2-year-old brother . . . about it.” Id. The defendant’s mother and father began to 

argue, which led to the defendant’s father beating her mother with a wine bottle. Id.

at 477, 119 S.E.2d at 462. When the defendant tried to intervene, the defendant’s 

father “grabbed [the defendant’s] arm and started twisting it.” Id. After the 

defendant’s father released her, he began beating her mother again. Id. at 477, 119 

S.E.2d at 463. The defendant retrieved a bumper jack and hit her father on the head 

with it numerous times until he went down, at which time the defendant left her 

father on the ground and took her mother to the hospital. Id. The defendant’s father 

died two days later. Id. at 478, 119 S.E.2d at 463.

In Carter, “the State introduced statements of the accused to the effect that the 

defendant was trying to stop the deceased from assaulting her mother with a broken 
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28

bottle.” Id. at 479, 119 S.E.2d at 464. The State limited its evidence in this regard 

to the accused’s statements, and there was “no evidence from which a jury could 

reasonably find that either the defendant or her mother was at fault in starting the 

altercation described in the record.” Id. Our Supreme Court explained that “[w]hile 

the State by offering this evidence was not precluded from showing that the facts 

were different, no such evidence was offered, and the State’s case was made to rest 

entirely on the statements of the defendant, which the State presented as worthy of 

belief.” Id. Thus, the Court concluded that “[t]his evidence plainly negatives the 

existence of an unlawful killing,” and reversed the trial court’s denial of the 

defendant’s motion for judgment of nonsuit. Id. at 479-80, 119 S.E.2d at 464.

We conclude that Carter is not analogous to the case before us. This Court has 

repeatedly distinguished self-defense cases from Carter where there is circumstantial 

or physical evidence contradicting exculpatory evidence. See, e.g., State v. Stafford, 

66 N.C. App. 440, 443, 311 S.E.2d 64, 66 (“While there was evidence tending to show 

that [the] defendant acted in self-defense, there was also substantial circumstantial 

evidence tending to show an intentional shooting done without legal excuse. The 

credibility and sufficiency of [the] defendant’s evidence to establish his plea of selfdefense were for the jury to evaluate in the light of the court’s instructions.” (citation 

and internal quotation marks omitted)), disc. review denied, 311 N.C. 406, 319 S.E.2d 

279 (1984); State v. Lane, 3 N.C. App. 353, 355, 164 S.E.2d 618, 619 (1968) (“The 
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Opinion of the Court

29

evidence did not completely exculpate the defendant because accidental death was 

not conclusively shown. There was some intimation of ill will or a quarrel between 

the defendant and the deceased, and the defendant was holding the knife in such a 

manner as to indicate an intentional use thereof.”). 

Likewise, the instant case was not entirely predicated on Molly’s statement

that she and Tom acted in self-defense and defense of each other. Here, the State 

presented substantial circumstantial evidence from which a rational juror could

reach a contrary conclusion, including that: (1) Jason suffered at least twelve blows 

to the head; (2) Tom had no visible injuries and Molly had only a “light redness” on 

her neck; (3) Jason was unarmed when the altercation occurred; (4) the children 

remained asleep throughout the entire altercation; (5) EMS, paramedics, and law 

enforcement responders observed that some of the blood on Jason’s body had dried, 

and that Jason’s body felt cool; (6) Tom told a coworker that he hated Jason; and (7) 

Jason had a life insurance policy, of which Molly was the named beneficiary. 

Viewed in the light most favorable to the State, there was sufficient evidence 

from which a rational juror could conclude that Defendants did not act in self-defense, 

or defense of each other. Accordingly, the trial court did not err by denying 

Defendants’ motions to dismiss the charges of second-degree murder and voluntary 

manslaughter. 

IV. Evidentiary Errors
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Opinion of the Court

30

A. Sarah and Jack’s Interview Statements

We next consider Defendants’ arguments that the trial court erred by 

excluding hearsay statements made by Sarah and Jack (1) during their child medical 

evaluations at the Dragonfly House on 6 August 2015, and (2) during their 3 August 

2015 interviews with a social worker employed by the Union County DSS. 

On 3 August 2015, the day after Jason’s death, both children were interviewed 

by a Union County DSS social worker, after an urgent request from the Davidson 

County Sheriff’s Office. Later that week, on 6 August 2015, Jack and Sarah visited 

the Dragonfly House, a nationally accredited children’s advocacy center in 

Mocksville, North Carolina. The children were referred to the Dragonfly House by 

the Davidson County Sheriff’s Office, due to concerns of abuse in the home. 

Prior to trial, Defendants moved to admit hearsay statements made by the

children during their interviews (1) by Union County DSS on 3 August 2015; and (2) 

at the Dragonfly House on 6 August 2015, pursuant to N.C. Gen. Stat. § 8C-1, Rule 

803(4), or in the alternative, Rules 803(24) and 804(b)(5).

1 Defendants further moved 

the trial court “to declare the minor witnesses, Jack Corbett and Sarah Corbett, 

unavailable for purposes of testifying at” trial, noting the defense’s inability “to 

 

1 Defendants also moved to admit statements made by the children on 13 August 2015 during 

interviews conducted by Union County DSS personnel, at the request of Davidson County DSS. 

However, on appeal, Defendants do not argue that the exclusion of these statements was erroneous. 

Accordingly, we do not consider the 13 August 2015 statements in our analysis. See N.C.R. App. P. 

28(b)(6) (“Issues not presented in a party’s brief, or in support of which no reason or argument is stated, 

will be taken as abandoned.”).
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31

procure the presence of” Jack and Sarah, who “are citizens and residents of the 

country of Ireland which is outside the jurisdiction of the subpoena power of the state 

of North Carolina.” The State sought to exclude all of the proffered statements. 

Following an extensive hearing with numerous witnesses on 8 and 9 June 2017, the 

trial court decided to “defer an absolute ruling” on Defendants’ hearsay motion until 

trial.

The trial court delivered its ruling on Friday, 4 August 2017, shortly after Tom 

testified during Defendants’ case-in-chief. The court properly found “that both Jack 

Corbett and Sarah Corbett are unavailable for purposes of this proffer of evidence. . . 

. [T]hey are beyond the jurisdiction and process of th[e] Court[,]” in that they “have 

been and remain in Ireland.” The trial court concluded, however, that none of the 

proffered statements were admissible under either (1) the medical diagnosis or 

treatment exception, Rule 803(4), or (2) the residual exception, pursuant to Rule 

803(24). The trial court subsequently entered a written order memorializing its 

ruling.

1. Medical Diagnosis or Treatment Exception

Defendants first contend that the trial court erroneously concluded that the 

children’s statements were not admissible under Rule 803(4). We agree.

Rule 803 provides, in pertinent part:

The following are not excluded by the hearsay rule, even 

though the declarant is available as a witness:
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Opinion of the Court

32

. . . .

(4) Statements for Purposes of Medical Diagnosis or 

Treatment. – Statements made for purposes of medical 

diagnosis or treatment and describing medical history, or 

past or present symptoms, pain, or sensations, or the 

inception or general character of the cause or external 

source thereof insofar as reasonably pertinent to diagnosis 

or treatment.

N.C. Gen. Stat. § 8C-1, Rule 803(4). 

The medical diagnosis or treatment exception to the hearsay rule is based upon 

the common-law rationale “that a patient has a strong motivation to be truthful in 

order to obtain appropriate medical treatment.” State v. Hinnant, 351 N.C. 277, 287, 

523 S.E.2d 663, 669 (2000). For this reason, statements admitted under Rule 803(4) 

are considered “inherently trustworthy and reliable[.]” Id. at 284, 523 S.E.2d at 668.

In Hinnant, our Supreme Court established a two-part test for admissibility 

under Rule 803(4):

First, the trial court must determine that the declarant 

intended to make the statements at issue in order to obtain 

medical diagnosis or treatment. The trial court may 

consider all objective circumstances of record in 

determining whether the declarant possessed the requisite 

intent. Second, the trial court must determine that the 

declarant’s statements were reasonably pertinent to 

medical diagnosis or treatment.

Id. at 289, 523 S.E.2d at 670-71. A trial court’s determination of the admissibility of 

hearsay statements pursuant to Rule 803(4) is reviewed de novo on appeal. State v. 
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Opinion of the Court

33

Norman, 196 N.C. App. 779, 783, 675 S.E.2d 395, 399, disc. review denied, 363 N.C. 

587, 683 S.E.2d 382 (2009).

In order to satisfy the first prong of the Hinnant test—the intent inquiry—the 

proponent of Rule 803(4) evidence must “demonstrat[e] that the declarant made the 

statements understanding that they would lead to medical diagnosis or treatment.” 

Hinnant, 351 N.C. at 287, 523 S.E.2d at 669. As our courts have repeatedly 

recognized, however, it is not always easy to ascertain “whether a declarant 

understood the purpose of his or her statements[,]” id., particularly in cases involving 

child-declarants. See, e.g., id.; State v. Blankenship, __ N.C. App. __, __, 814 S.E.2d 

901, 915-16 (2018), disc. review denied, 372 N.C. 295, 827 S.E.2d 98 (2019); State v. 

Isenberg, 148 N.C. App. 29, 36-37, 557 S.E.2d 568, 573 (2001), appeal dismissed and 

disc. review denied, 355 N.C. 288, 561 S.E.2d 268 (2002). 

The trial court may consider a number of factors in determining whether a 

child’s statements were motivated by the necessary intent, including “whether an 

adult explained to the child the need for treatment and the importan[ce] of 

truthfulness; with whom and under what circumstances the declarant was speaking; 

the setting of the interview; and the nature of the questions.” Blankenship, __ N.C. 

App. at __, 814 S.E.2d at 916 (citation omitted). But again, “the trial court should 

consider all objective circumstances of record surrounding [the] declarant’s 
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Opinion of the Court

34

statements in determining whether he or she possessed the requisite intent under 

Rule 803(4).” Hinnant, 351 N.C. at 288, 523 S.E.2d at 670 (emphasis added). 

“The second inquiry under Rule 803(4) is whether the statements of the 

declarant are reasonably pertinent to diagnosis or treatment.” Id. (citations omitted). 

Here, it is important to note that a “statement need not have been made to a 

physician” in order to satisfy Rule 803(4)’s requirements for admission. N.C. Gen. 

Stat. § 8C-1, Rule 803(4) cmt. Indeed, our Supreme Court has recognized that the 

exception could “include ‘statements to hospital attendants, ambulance drivers, or 

even members of the family.’ ” Hinnant, 351 N.C. at 288, 523 S.E.2d at 670 (quoting 

State v. Smith, 315 N.C. 76, 84, 337 S.E.2d 833, 839 (1985) (quoting N.C. Gen. Stat. 

§ 8C-1, Rule 803(4) cmt.)). 

The common-law rationale underlying the medical diagnosis or treatment 

exception is “equally relevant during the second inquiry under Rule 803(4). If the 

declarant’s statements are not pertinent to medical diagnosis, the declarant has no 

treatment-based motivation to be truthful.” Id. at 289, 523 S.E.2d at 670. The Court 

in Hinnant thus determined that although statements to nonphysicians made before 

the declarant obtains treatment might be covered by the exception, “Rule 803(4) does 

not include statements to nonphysicians made after the declarant has already 

received initial medical treatment and diagnosis.” Id. Nor does the Rule apply where 

the declarant “was interviewed solely for purposes of trial preparation.” Id. (emphasis 
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Opinion of the Court

35

added) (citations omitted). But cf. Isenberg, 148 N.C. App. at 38-39, 557 S.E.2d at 574 

(concluding that statements were properly admitted under Rule 803(4) where the 

trial court found from the evidence that “the purpose of the examination was ‘dual, 

in that it was both for the purpose of medical intervention and for the purpose of 

future prosecution,’ which meets the first prong of the [Hinnant] test”).

In the instant case, the trial court concluded that the children’s interview 

statements were inadmissible under Rule 803(4) because:

3. None of the proffered statements of Jack Corbett and 

Sarah Corbett satisfy the first prong of the Hinnant

analysis as they were not intended to obtain a medical 

diagnosis or treatment.

4. Likewise, none of the proffered statements of Jack 

Corbett and Sarah Corbett satisfy the second prong of the 

Hinnant analysis as they were not pertinent to any medical 

diagnosis or treatment.

Following similar reasoning, our dissenting colleague concludes that the 

children’s statements fail the first prong of the Hinnant test because (1) the forensic

medical interviews were conducted in a child-friendly environment, separate and 

distinct from the physical examinations that the children received at the Dragonfly 

House; and (2) the objective circumstances of record do not indicate that the children 

understood that the purpose of the interviews was to obtain medical diagnosis or 

treatment. We disagree.
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Opinion of the Court

36

Here, the child-friendly setting in which the interviews were conducted favors 

admission, rather than exclusion, of Jack’s and Sarah’s statements. Brandi Reagan, 

Executive Director of the Dragonfly House, testified at the pretrial hearing on 

Defendants’ motion to admit the children’s statements. Reagan explained that the 

Dragonfly House is an independent, nationally accredited, non-profit children’s 

advocacy center “that provides all-inclusive services to children who have either 

disclosed abuse or are suspected of experiencing abuse, which is physical abuse, 

sexual abuse, neglect or witnessed violence.” The Dragonfly House provides myriad 

services, including a “child medical evaluation,” which Reagan explained is “a type of 

exam that is very detailed and thorough that is set forth from the [State] Department 

of Social Services . . . us[ing] a program . . . that was established by UNC Chapel 

Hill.” The purpose of a child medical evaluation is to determine the child’s needs, and 

to diagnose and treat the child accordingly.

A child medical evaluation at the Dragonfly House begins with a meeting of 

the child, his or her caregivers, and Heydy Day, child advocate for the Dragonfly 

House. Day conducts intake paperwork, answers questions, and informs the parties 

what to expect during all stages of the appointment. Reagan testified that “[a]fter 

[Day] explains that to the caregiver, she does explain that to the child at their level 

so if it’s a younger child, she will explain it in a different way than she would a 

teenager. She makes sure that they understand and they know what to expect.”
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Opinion of the Court

37

Day described how she typically explains the child medical evaluation process 

to the parties during intake:

I start off talking to the child and the caregiver saying, “you 

will be talking with one of my friends today,” whether 

that’s our interviewer Kim or interviewer Brandi, you will 

be talking to that lady. 

Her job is just to talk with you. That’s all she will 

do. But while she is talking with you there are cameras set 

up in the room. I typically point out the camera to them in 

the lobby. We have security cameras just for security 

purposes in the lobby. Outside I will say, “Can you find the 

camera in this room?” They will point to it. I say, “Miss 

Kim and Miss Brandi have cameras just like that in that 

room. The cameras in that room are to record what you 

and her talk about because this is really important. This 

way I don’t have to talk to all of these different people that 

you don’t know.” I usually ask them, “Do you have any 

questions? Are you okay with that?” And I will answer 

their questions. After that I say, “While you are talking 

with Miss Brandi or Miss Kim your caregiver will be 

talking with our doctor. Our doctor will be asking 

questions about your health throughout your whole life.”

I typically give kids examples of those questions 

such as, have you ever been in the hospital, have you ever 

had surgeries, broken bones, allergies, take medicine 

regularly, just to give the child an idea what the doctor is 

going to be talking to their caregiver about. I say, “Once 

you finish talking with Miss Kim or Miss Brandi and the 

doctor finishes talking with the caregiver, then the doctor 

will call you back to do a head to toe check-up of you.” I 

say, “there is a nurse, . . . she’s going to help you pick out a 

T-shirt and a blanket for the medical exam.” 

. . . .

“Once you come out of the bathroom, the nurse and 
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38

doctor will ask you how much you weigh, how tall you are.” 

I usually say, “The thing that gives you a hug for your blood 

pressure, your vision, your hearing, your height, your head 

check, back, bottom, private area, legs and feet.” I do a 

head to toe of myself to give them an overview of what is to 

be expecting [sic]. I say, “Is that okay with you?” I get a 

variety of responses on that from different children. I say, 

“Do you have any questions for me about that?” I answer 

the questions if they have any. Then I say, “Okay I will go 

ahead and let everybody know I have spoken with you and 

then Miss Kim or Miss Brandi will come and get you.” 

Then I will defer them.

The Dragonfly House is “set into an old home.” Forensic medical interviews2

and physical examinations are conducted in separate bedrooms across the hall from 

one another. The interview room is “intentionally designed and laid out to be . . . 

‘child friendly’ ”: there is an easel “in case the child needs to draw,” along with 

anatomically correct dolls, Play-Doh, and tissues, among other items.

Nonetheless, the room’s child-friendly design does not negate its clinical 

purpose. Reagan testified that the room’s two “chairs are positioned so that they can 

be seen from two cameras on the wall; one is – you can see everything in the room 

from both cameras; one is primarily focused on one chair. The other is focused on the 

other chair.” Members of the child’s “multi-disciplinary team”3 may view the forensic 

 

2 According to Reagan, a “forensic interview” is “an interview done by someone who is trained 

to talk to children in a non-leading manner in a format that is approved on a national level while being 

recorded.”

3 Davidson County Sheriff’s Detective Mark Hanna explained, “We have what’s called an MDT, 

multi-disciplinary team, which involves law enforcement, DSS and the Dragonfly House. Each of those 

entities work together to figure out what’s going on in the child’s life, how to properly treat the child, 

and get services for the child.”
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Opinion of the Court

39

medical interview in an adjacent “observation room,” via a one-way, live audio-visual 

feed.

In the instant case, the child-friendly atmosphere and the separation of the 

examination rooms do not indicate that the children’s statements during the 

interviews were not intended for medical purposes. The children were informed 

before their interviews that they would be receiving medical interviews together with 

physical examinations as part of their full evaluations at the Dragonfly House. See

Hinnant, 351 N.C. at 289, 523 S.E.2d at 670 (“Rule 803(4) does not include statements 

to nonphysicians made after the declarant has already received initial medical 

treatment and diagnosis.”).

Day testified that during intake, she informed Jack and Sarah that they

“[we]re going to be interviewed and . . . have a medical exam.” Day did not recall 

either child asking any questions during intake; in her view, the children “seem[ed] 

to understand” both components of the child medical evaluation. Contra State v. 

Bates, 140 N.C. App. 743, 746-47, 538 S.E.2d 597, 600 (2000) (concluding that the 

record failed to demonstrate that the child possessed the requisite intent under Rule 

803(4) where the child “did not know why she was there” and the psychologist “never 

made it clear that the child needed treatment”; neither the psychologist nor the “ 

‘child-friendly’ room” in which the interview was conducted “emphasize[d] the need 

for honesty”; and “the child’s statements lack[ed] inherent reliability because of the 
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Opinion of the Court

40

nature of [the psychologist’s] leading questions”), disc. review denied, 353 N.C. 383, 

547 S.E.2d 20 (2001). 

Moreover, Reagan testified that the Dragonfly House is child-friendly by 

design: the intention is to ease any anxiety that the child may be experiencing upon

arrival, and to encourage open and frank discussions. Day testified that in her 

experience, “the lobby is the most comfortable place” for families to conduct intake 

procedures, likely due to the child-friendly décor and the presence of many toys, 

children’s books, and puzzles. Children come to the Dragonfly House because they 

are either confirmed or suspected victims of some type of abuse or other trauma; they 

are more likely to be truthful with an unknown interviewer if they are at ease and

feel safe and comfortable with their surroundings. Cf. State v. McLaughlin, 246 N.C. 

App. 306, 321, 786 S.E.2d 269, 281 (rejecting the defendant’s contention that some of 

the nurse’s interview questions, “such as the importance of telling the truth, were not 

pertinent to medical diagnosis or treatment[,]” because “these questions were crucial 

to establishing a rapport with the victim and impressing upon him the need to be 

open and honest about very personal and likely embarrassing details pertinent to his 

well-being”), appeal dismissed and disc. review denied, 368 N.C. 919, 787 S.E.2d 29 

(2016).

Both the dissent and the trial court focus heavily on the children’s responses 

to one of Reagan’s initial inquiries: “Tell me why you’re here.” Sarah replied, 
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41

“Because my dad died.” Jack responded, “[M]y dad died, and people are trying—my 

aunt and uncle from my dad’s side are trying to take away—take me away from my 

mom.” The trial court gleaned from these responses that “[t]he children understood 

the impetus of these interviews was to affect future legal custody determinations and 

not to obtain medical evaluation or treatment.” The dissent concludes that 

Defendants fail “to affirmatively establish that Sarah or Jack had the requisite intent 

to make statements” for medical diagnosis or treatment purposes during their 

forensic interviews. Dissent at 21. Both analyses under Rule 803(4) miss the point.

Under the first prong of the Hinnant test, the focus is not whether the children 

independently sought out medical treatment, nor even whether their statements 

evince that they might do so if they were able. Instead, the focus must be on whether 

all of the objective circumstances of record demonstrate that the children understood 

the overall medical purpose and significance of their interviews at the Dragonfly 

House, and were accordingly motivated to be truthful. See State v. Lewis, 172 N.C. 

App. 97, 104, 616 S.E.2d 1, 5 (2005) (concluding that the first part of the Hinnant 

inquiry was satisfied where “the children were old enough to understand the 

interviews had a medical purpose, and they indicated as such[,]” and “the 

circumstances surrounding the interviews created an atmosphere of medical 

significance”—even though “the interviews took place in a ‘child-friendly’ room, not a 
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Opinion of the Court

42

medical examination room”—because they were conducted “at a medical center, with 

a registered nurse, immediately prior to a physical examination”). 

Here, the objective circumstances of record support the conclusion that the 

children had the requisite intent under Rule 803(4). Reagan asked non-leading, openended questions, and she instructed the children that they should not “guess at 

anything.” Both Day and Reagan emphasized the overall significance of the child 

medical evaluations that Jack and Sarah would be receiving at the Dragonfly House. 

Day testified that during intake, she points to the security cameras in the lobby and 

tells children that there will be similar cameras in the interview room “to record what 

you and [Miss Kim or Miss Brandi] talk about because this is really important.” 

(Emphasis added).

Reagan testified that before she begins interviewing a child, she explains her 

“rules” for the interview. Reagan first establishes that the child knows the difference 

between the truth and a lie. Reagan also instructs the child to correct her if she 

makes a mistake, and explains that if she asks a question that the child cannot 

answer, “it’s okay to say you don’t know.”

Jack and Sarah were of sufficient age and maturity to understand the medical 

significance of the overall evaluations. See id. (“[T]he children were old enough to 

understand the interviews had a medical purpose, and they indicated as such.”). 

Furthermore, it is evident from the children’s conduct and responses—both during 
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Opinion of the Court

43

Reagan’s statement of the “rules” and throughout their interviews—that they 

understood the importance of honesty. Sarah self-corrected when she misspoke; 

when her answer was unclear, Reagan gently redirected Sarah to the previous topic 

until she provided a clear answer. Moreover, not only did Reagan convey the 

importance of honesty, when asked whether anyone had told them what to say during 

their interviews prior to their arrival at the Dragonfly House, both children 

affirmatively stated that they had only been instructed to “tell the truth.”

Jack was initially reluctant to speak about his father’s death during his 

interview with Reagan. Who could blame him? It would be a rare ten-year-old boy 

indeed who relished the opportunity to speak openly with a complete stranger about 

what must be deeply painful, complicated feelings regarding the violent, tragic death 

of his father—and in Jack’s case, his last remaining biological parent—mere hours 

after attending his funeral. But this is precisely why Jack required the Dragonfly 

House’s services, and why he and Sarah were referred for examinations: they were 

present during an extremely traumatic event involving the death of their father, and 

they may have been witnesses to, or victims of, domestic abuse. See McLaughlin, 246 

N.C. App. at 321, 786 S.E.2d at 281 (“[H]aving the victim relate the details from 

beginning to end helped the medical practitioners to evaluate the extent of the mental 

and physical trauma to which the victim was exposed, inquire as to whether the 
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Opinion of the Court

44

victim was out of danger, and discover whether other abusers or victims may have 

been involved.”).

There is no requirement under the Rule or the Hinnant test that children 

independently seek medical treatment, nor even request it. Children do not have the 

ability to seek medical assistance without the resources, financial or otherwise, of 

their parents or caregivers. See Smith, 315 N.C. at 84, 337 S.E.2d at 840 (“[Y]oung 

children cannot independently seek out medical attention, but must rely on their 

caretakers to do so.”). Nor do they have the emotional acumen or the language 

necessary to effectively seek help when the medical need involves mental health. 

Indeed, this is an area with which many adults struggle. In asking children who lack 

sufficient knowledge even to verbalize the trauma that they have experienced to 

independently seek medical assistance, the trial court demands too much. 

Our courts have a strong precedent of allowing this type of evidence in cases 

involving children. Most often it is the State seeking its admission. See, e.g.,

McLaughlin, 246 N.C. App. at 321, 786 S.E.2d at 281; State v. Burgess, 181 N.C. App. 

27, 34-35, 639 S.E.2d 68, 74 (2007), cert. denied, 365 N.C. 337, 717 S.E.2d 384 (2011); 

Lewis, 172 N.C. App. at 105, 616 S.E.2d at 6; State v. Thornton, 158 N.C. App. 645, 

649-51, 582 S.E.2d 308, 310 (2003); Isenberg, 148 N.C. App. at 36, 557 S.E.2d at 573. 

The Dragonfly House is just one of many similar team-oriented children’s 

advocacy centers statewide. Excluding the evidence in this case runs counter to 
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Opinion of the Court

45

existing precedent and muddies the law moving forward. Cf. McLaughlin, 246 N.C. 

App. at 322 n.5, 786 S.E.2d at 282 n.5 (“We do not posit that the [children’s advocacy 

center] interview is a substitute for in-court testimony, but, where, as here, the 

declarant is unavailable, his video recorded medical interview is sufficiently reliable 

to be admissible. Therefore, the jury is able to assess the testimony, to observe the 

demeanor of the declarant, to determine the credibility and trustworthiness of his 

statements, and thereby perform their function as a jury.”).

Having determined that the children possessed the requisite intent under Rule 

803(4), we proceed to the second inquiry of the Hinnant test. We conclude that the 

children’s statements were reasonably pertinent to medical treatment or diagnosis, 

and therefore, should have been admitted pursuant to Rule 803(4).

Following their forensic medical interviews, Sarah and Jack received physical 

examinations by Dr. Amy Suttle, the pediatrician for the Dragonfly House. Based 

upon the results of the examinations, Dr. Suttle diagnosed both children as “victim[s] 

of child abuse based on exposure to domestic violence” and recommended that they 

“receive mental health services” as treatment. The children attended one therapy 

session in North Carolina on 10 August 2015, following a referral by the Dragonfly 

House personnel, and they began attending counseling for grief and trauma in early 

September 2015, after they were taken to Ireland.
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Opinion of the Court

46

As Defendants argued at the pretrial hearing on the admissibility of these 

statements, Jack and Sarah were referred to the professionals at Dragonfly House in 

order to obtain examinations “primarily for their health, safety, and welfare.” The 

medical interviews and the physical examinations were conducted for the same 

purpose and as part of the same overall child medical evaluation. Both parts were 

used to inform the ultimate conclusion in each child’s medical evaluation, and 

conducting one part without the other would render the evaluation incomplete. 

The children’s statements evince the requisite intent under Rule 803(4), and 

the statements clearly pertain to medical treatment or diagnosis. Thus, the trial 

court erred in excluding these statements.

2. Residual Exception

Even if the children’s Dragonfly House forensic medical interview statements 

were inadmissible under the medical diagnosis or treatment exception to the rule 

against hearsay, these statements are admissible under the residual exception.

The residual exception to the rule against the admission of hearsay is codified 

by N.C. Gen. Stat. § 8C-1, Rules 803(24) and 804(b)(5). Rules 803(24) and 804(b)(5) 

are “substantively nearly identical”: “Rule 804(b)(5) is a verbatim copy of Rule 

803(24), except that Rule 804(b)(5) also requires that the declarant be unavailable 

before the hearsay may be admitted and Rule 803(24) does not.” State v. Triplett, 316 

N.C. 1, 7, 340 S.E.2d 736, 740 (1986). For purposes of Rule 804, a declarant is 
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47

“unavailab[le] as a witness” if, inter alia, he “[i]s absent from the hearing and the 

proponent of his statement has been unable to procure his attendance . . . by process 

or other reasonable means.” N.C. Gen. Stat. § 8C-1, Rule 804(a)(5).

As set forth under either Rule, the residual exception permits admission of

[a] statement not specifically covered by any of the 

foregoing exceptions but having equivalent circumstantial 

guarantees of trustworthiness, if the court determines that 

(A) the statement is offered as evidence of a material fact; 

(B) the statement is more probative on the point for which 

it is offered than any other evidence which the proponent 

can procure through reasonable efforts; and (C) the general 

purposes of these rules and the interests of justice will best 

be served by admission of the statement into evidence. 

However, a statement may not be admitted under this 

exception unless the proponent of it gives written notice 

stating his intention to offer the statement and the 

particulars of it, including the name and address of the 

declarant, to the adverse party sufficiently in advance of 

offering the statement to provide the adverse party with a 

fair opportunity to prepare to meet the statement.

N.C. Gen. Stat. § 8C-1, Rules 803(24), 804(b)(5).

In order for hearsay statements to be admissible under Rule 803(24) or Rule 

804(b)(5), the trial court must determine:

(1) whether proper notice has been given, (2) whether the 

hearsay is not specifically covered elsewhere, (3) whether 

the statement is trustworthy, (4) whether the statement is 

material, (5) whether the statement is more probative on 

the issue than any other evidence which the proponent can 

procure through reasonable efforts, and (6) whether the 

interests of justice will be best served by admission.

State v. Valentine, 357 N.C. 512, 518, 591 S.E.2d 846, 852 (2003). 
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48

We review a trial court’s ruling on the admissibility of hearsay statements 

under the residual exception for abuse of discretion. State v. Sargeant, 365 N.C. 58, 

62-63, 707 S.E.2d 192, 195 (2011); Smith, 315 N.C. at 97, 337 S.E.2d at 847. The trial 

court must “make adequate findings of fact and conclusions of law sufficient to allow 

a reviewing court to determine whether the trial court abused its discretion in making 

its ruling.” Sargeant, 365 N.C. at 65, 707 S.E.2d at 196 (citing Smith, 315 N.C. at 97,

337 S.E.2d at 847). “If the trial court either fails to make findings or makes erroneous 

findings, we review the record in its entirety to determine whether th[e] record 

supports the trial court’s conclusion concerning the admissibility of a statement 

under a residual hearsay exception.” Id. “If we conclude that the trial court erred in 

excluding [Jack’s and Sarah’s] hearsay statement[s], we consider whether 

[D]efendant[s] w[ere] prejudiced.” Id. at 65, 707 S.E.2d at 197.

Defendants contend that the trial court committed prejudicial error by 

concluding that the following evidence was inadmissible under the residual 

exception: (1) the children’s statements during their interviews with the Union 

County DSS social worker on 3 August 2015; and (2) Jack’s and Sarah’s statements 

during their child medical evaluations at the Dragonfly House on 6 August 2015.4 

We agree.

 

4 Contrary to their arguments at trial, Defendants do not contend on appeal that the 3 August 

2015 Union County DSS interview statements were admissible under the medical diagnosis or 

treatment exception; consequently, we limit our consideration of the admissibility of those statements 
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Opinion of the Court

49

In its written order, the trial court determined, in relevant part:

1. The declarant minor children, Jack Corbett and Sarah 

Corbett, are unavailable for purposes of N.C.G.S. 8C-1, 

Rule 803.

. . . .

6. Admissibility of hearsay statements offered pursuant to 

the residual exception, N.C.G.S. 8C-1, Rule 803(24) is 

governed by the six-prong test set out by our Supreme 

Court in State v. Smith, 315 N.C. 76 (1990).

7. This court must first consider whether proper notice has 

been given. The defendant provided written notice to the 

State more than 60 days in advance of trial. This notice 

was proper and timely.

8. This court next considers whether each proffered 

statement is specifically covered under one of the other 

hearsay exceptions. The defendants’ only contention of 

another applicable exception is the medical treatment or 

diagnosis exception, Rule 803(4). The court has 

determined the statements are not admissible pursuant to 

that exception. The court has reviewed all other exceptions 

set out in the Rule and finds that none are applicable.

9. This court must next consider whether the proffered 

statements are trustworthy. “[A] hearsay statement . . . 

may be admissible under the residual exception if it 

possesses ‘circumstantial guarantees of trustworthiness’ 

equivalent to those required for admission under the 

enumerated exceptions.” Smith, at 93.

 

to the residual exception, in accordance with N.C.R. App. P. 28(b)(6). Furthermore, as explained in

Section IV(A)(1) above, the children’s Dragonfly House statements should have been admitted under 

the medical diagnosis or treatment exception. But even assuming, arguendo, that Sarah’s and Jack’s 

statements from the child medical evaluations conducted at the Dragonfly House on 6 August 2015 

were inadmissible under Rule 803(4), for the reasons set forth herein, the trial court nevertheless erred 

by excluding the statements under the residual exception.
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50

. . . .

14. The proffered statements do not have circumstantial 

guarantees of trustworthiness. Further, this court having 

concluded the statements are not trustworthy, the court 

need not continue to the additional prongs of the Smith

analysis.

(Alteration in original).

The third inquiry of the trial court’s analysis, which asks whether the proffered 

statement possesses “circumstantial guarantees of trustworthiness” akin to those 

required for admission under other exceptions, “has been called ‘the most significant

requirement’ of admissibility” under the residual exception to the rule against the 

admission of hearsay. Smith, 315 N.C. at 93, 337 S.E.2d at 844-45. In evaluating 

the “circumstantial guarantees of trustworthiness” of a statement pursuant to Rules 

803(24) and 804(b)(5), the trial court must consider “(1) assurances of the declarant’s 

personal knowledge of the underlying events, (2) the declarant’s motivation to speak 

the truth or otherwise, (3) whether the declarant has ever recanted the statement, 

and (4) the practical availability of the declarant at trial for meaningful crossexamination.” Triplett, 316 N.C. at 10-11, 340 S.E.2d at 742. “Also pertinent to this 

inquiry are factors such as the nature and character of the statement and the 

relationship of the parties.” Id. at 11, 340 S.E.2d at 742.

Here, the trial court concluded that the proffered statements lack 

circumstantial guarantees of trustworthiness because:
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51

11. The court is not assured of the personal knowledge of 

the declarants as to the underlying events described in that 

both children identified the source of their knowledge being 

nothing more than statements of a defendant and that 

defendant’s mother. The declarations contain no reference 

to seeing, hearing or perceiving anything about the events 

described except these statements of others.

12. The court is not assured of the children’s motivation to 

speak the truth, but instead finds the children were 

motivated, in the near immediate aftermath of the death of 

their father, to preserve a custody environment with the 

only mother-figure they could remember having known 

during their lives. The children appear to have known that 

if they were not in the custody of defendant Molly Corbett 

they would be taken to live in the Republic of Ireland with 

relatives of their father.

13. The proffered statements were specifically recanted 

and disavowed.

Defendants challenge the following findings of fact underlying the above 

conclusions: (1) findings #15 and #20, which pertain to the children’s personal

knowledge; (2) finding #21, that the statements “were not made at a time when the 

children were motivated to speak the truth but were rather motivated to affect future 

custody arrangements”; and (3) finding #22, that the statements regarding Molly and 

Jason’s relationship “have been specifically recanted” by the children in diary entries 

and a Skype interview between Jack and a member of the district attorney’s office. 

We consider each of Defendants’ arguments in turn.

Findings of fact #15 and #20 provide: 

15. The children’s statements did not describe actual 
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52

knowledge of the events surrounding the homicide of Jason 

Corbett. Jack identified the source of the information in 

his statements by saying “my mom told me” and “she 

(defendant Molly Corbett) told us.” Sarah similarly 

described the source of her knowledge, saying the [sic] her 

grandmother “told [me] first and then her mother [told 

me].” When speaking of her “grandmother,” Sarah was 

referring to the mother of defendant Molly Corbett and the 

wife of defendant Thomas Martens.

. . . . 

20. The statements of the children which the defense 

proffers were not made out of the personal knowledge of 

the declarant children but are instead double hearsay 

declarations of the defendant Molly Corbett and her 

mother.

(Alterations in original).

Insofar as the trial court limited its consideration of the children’s statements 

during their interviews with Union County DSS and Dragonfly House personnel on 

3 and 6 August 2015, respectively, to “the events surrounding the homicide of Jason 

Corbett” alone, findings of fact #15 and #20 are erroneous. See Sargeant, 365 N.C. at 

65, 707 S.E.2d at 196 (“If the trial court either fails to make findings or makes 

erroneous findings, we review the record in its entirety to determine whether th[e] 

record supports the trial court’s conclusion concerning the admissibility of a 

statement under a residual hearsay exception.” (emphasis added)). 

As explained in Section IV(A)(1) above, the Davidson County Sheriff’s Office 

referred the children to the Dragonfly House, due to concerns that they may have 
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Opinion of the Court

53

witnessed or experienced domestic abuse. Similarly, Union County DSS personnel 

interviewed the children at the request of Davidson County DSS, to which this matter 

had been referred by the Davidson County Sheriff’s Office, following allegations of 

domestic violence and substance abuse in the home. On 3 August 2015, Davidson 

County DSS faxed a letter to Union County DSS, stating, inter alia:

To Whom This May Concern:

Our agency received and accepted a [Child Protective 

Services] referral in reference to [Jack and Sarah Corbett] 

on 08/02/2015 with a 72 hours [sic] response time, however 

due to the nature of this report and the concerns that Molly 

Corbett, step-mother, may leave to Tennessee with the 

children we asked that you assist us in initiating this case 

TODAY (08/03/2015). Please interview each children [sic]

privately to address the [Child Protective Services] 

concerns as well as questions surround [sic] SEEMAPS. 

Please interview the mother and her parents, Mr. and Mrs. 

Martens, regarding the incident that was alleged in the 

[Child Protective Services] referral.

Due to the death of the children’s father, our Sheriff’s 

Office has scheduled a [child medical evaluation] for both 

children. This [child medical evaluation] have [sic] been 

schedule [sic] for Thursday (08/06/2015) at 1:00 pm. Please 

provide the family with the attached brochure regarding 

our [child advocacy center]. I’ve informed Mrs. Corbett that 

she cannot be present during the children’s [child medical 

evaluation] due to the nature of the allegations. Mrs. 

Corbett reported that her mother can transport the 

children to and from their appointment. Please address 

this in the safety plan with Mrs. Corbett and her mother.

(Emphases added).
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This letter plainly states that the primary purpose of the Union County DSS 

interviews—like the Dragonfly House interviews—was to ensure the immediate 

safety and well-being of the children. Indeed, as the trial court observed in finding of 

fact #16, the Union County DSS interviews were conducted “in regard to alleged 

alcohol and/or substance abuse by the defendant Molly Corbett and concern about 

physical abuse of Jack Corbett.” Moreover, it is also clear from this letter that the 

utmost care was taken to protect the objectivity, integrity, and confidentiality of the 

children’s interviews, both those conducted by DSS personnel as well as those 

conducted at the Dragonfly House. Davidson County DSS requested that Union 

County DSS interview each child privately, and specifically noted that Molly had 

already been instructed that her presence was not permitted during the children’s 

Dragonfly House interviews.

 The trial court’s findings of fact #21 and #22 are similarly flawed in their 

reasoning:

21. These same statements were not made at a time when 

the children were motivated to speak the truth but were 

rather motivated to affect future custody arrangements –

specifically the children feared that they were going to be 

“taken away from their mother” and removed to another 

country by their father’s relatives.

22. The statements of the children that are offered by the 

defense as pertinent to the relationship between Molly 

Corbett and Jason Corbett have been specifically recanted. 

Sarah Corbett, the younger of the two children, recanted 

her statements in diary entries made after her return to 
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Opinion of the Court

55

Ireland. Jack Corbett recanted his statements in diary 

entries and during a recorded interview with members of 

the District Attorney’s Office.

Finding of fact #21 is erroneous in that it overlooks the overwhelming evidence

that both children understood the seriousness of the proceedings and the importance 

of truthfulness, as well as the temporal proximity of the children’s statements to 

Jason’s death. Although both children indicated that they loved Molly and desired to 

remain in her custody, this, alone, is not indicative of a dishonest motive, particularly 

where there is substantial evidence to the contrary. 

Moreover, this finding discounts statements by Jack and Sarah that tend to 

refute that “the children feared that they were going to be ‘taken away from their 

mother’ and removed to another country by their father’s relatives.” Jack told 

Reagan that he was “[a]ngry and upset” about what had happened, and he wondered, 

“How can people be so mean?” When Reagan asked him what he meant, Jack 

clarified, “How my dad could get so angry. How my grandpa could hit him with a bat 

and my mom hit him with a brick.” Sarah explained to Reagan that she held Molly’s 

hand at Jason’s funeral earlier that day on 6 August 2015, “[b]ecause my aunt, she’s 

– she’s real nice, but she gets emotional, and she doesn’t want me and Jack to have a 

bad life. She wants us to have the best life that she can make for us. But my mom 

wants the same.”
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Opinion of the Court

56

As for the children’s alleged recantations, it is unclear from finding of fact #22 

why the trial court deemed the “diary entries” or the circumstances of Jack’s Skype 

interview with a member of the district attorney’s office to be more trustworthy than 

either of the objective and impartial interviews at issue here. The diary entries were 

never authenticated before the trial court. Moreover, while Molly was explicitly 

prohibited from attending the children’s interviews with Union County DSS and 

Dragonfly House personnel, Jack’s Skype interview with the district attorney’s office 

was conducted from his home in Ireland, with his aunt—Jason’s sister—and uncle 

upstairs and within earshot. Cf. Sargeant, 365 N.C. at 66, 707 S.E.2d at 197 (“We 

emphasize again that the issue is not whether [the declarant’s] statement is 

objectively accurate; the determinative question is whether [the declarant] was 

motivated to speak truthfully when he made it. The agreement between [the 

defendant’s co-conspirator] and the State, reached when [the co-conspirator] provided 

his statement, appears designed to ensure his truthfulness.”).

Both the Union County DSS and the Dragonfly House interviews covered much 

more information than just the specific “events surrounding the homicide of Jason 

Corbett,” to wit: Jason’s worsening anger management issues; Molly and Jason’s 

ongoing relationship troubles, including alleged verbal, emotional, and physical 

abuse; and, perhaps most importantly, the children’s awareness and perception of 

these issues. Furthermore, the most probative of the children’s statements are all 
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Opinion of the Court

57

clearly based upon their own personal knowledge. For example, during her 3 August 

2015 Union County DSS interview, Sarah told the social worker that “what she likes 

most about home” is “being with her mom when her dad is not there . . . because her 

dad fights her mom and sometimes he brings it out on her. She stated sometimes she 

will get in trouble for saying stop.” Sarah told the social worker that “her father 

screams and yells” and “is angry on a regular basis”; when her parents’ fighting “is 

really bad, . . . she has to stay in her room for a long time.” Sarah “has seen her dad 

hit her mom and pull her hair.” Sarah shared that, on one occasion, she “saw her dad 

smack her mom. [Sarah] stated that her mom fell, got up and then went to the car.”

Similarly, Jack told the social worker “that what he does not like [about] being 

at home is his parents fighting. Jack stated physically and verbally.” Jack said “that 

his dad gets mad at his mom for no good reason; . . . she can do nothing right.” 

According to Jack, Jason “curses his mom; [Jack] stated that he has seen his dad a 

few times hit his mom with his fist anywhere on her body that he can.”

The children’s Dragonfly House interviews are lengthy and broadly 

substantive. But perhaps the most material of evidence that may be gleaned from 

the Dragonfly House interviews are statements that the children made based upon 

their personal knowledge and never recanted, and which unquestionably pertained

to “the events surrounding the homicide of Jason Corbett.”
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58

Sarah told Reagan that she often experienced difficulty sleeping through the 

night, and in such instances, she would approach Molly for comfort. Jason, however, 

disliked it when Sarah got out of bed and Molly attended to her in the middle of the 

night, and he would get angry with them both. The evidence shows that Sarah’s 

nightmare and her consequent appearance in Jason and Molly’s bedroom on 2 August 

2015 was the precipitating event that caused Jason to grow angry with Molly, thereby 

starting the fight that led to the fatal altercation:

Ms. Reagan: Okay. And had there ever been any times that 

you did wake up during the night in the past?

Sarah Corbett: Yeah.

Ms. Reagan: Okay. What would happen when you do wake 

up during the night?

Sarah Corbett: I would go downstairs because I usually had 

a nightmare. But I think what caused my dad being really 

mad that night was because, um, my mom kept on coming 

upstairs because I – like I have fairies on my bed, and I 

really get scared of those things, because they like look like 

there are spiders and lizards on my bed. So that’s why my 

mom had to keep on coming up. I couldn’t fall asleep until 

my mom put another sheet on my bed, and then my dad got 

mad.

Ms. Reagan: Okay. So you told me that you had fallen 

asleep downstairs and someone carried you upstairs. Did 

you wake up at any point after that?

Sarah Corbett: Nope.

Ms. Reagan: Okay. So you said your mom had to put 

another sheet on. How did you know that?
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59

Sarah Corbett: Because before I went to sleep, she –

because I woke up, like, in the middle – like not in the 

middle, but like – I’m sorry I said that I didn’t wake up.

Ms. Reagan: It’s okay.

Sarah Corbett: I woke up just a little bit. Um, because it’s 

like I just woke up before my mom put me in my bed, and 

I put – and I put the – I put the covers on me, and I tried 

to go to bed, but I couldn’t.

Ms. Reagan: Okay.

Sarah Corbett: And at first I thought I had a big lizard in 

my room. And it freaked me out.

Ms. Reagan: And you said she kept coming and checking 

on you?

Sarah Corbett: Uh-huh.

Ms. Reagan: And why do you think that’s what they were 

arguing about?

Sarah Corbett: Because my dad, like, doesn’t like my mom 

sleeping, like, with me. He wants her to be upstairs with 

him.

Ms. Reagan: Have you ever heard them argue about that 

before?

Sarah Corbett: Yes.

Bedsheets matching those described by Sarah are visible on the floor in State’s 

Ex. 62, a photograph of Sarah’s bedroom.
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60

Jack’s Dragonfly House interview also contains statements, based upon his 

personal knowledge, that are both material and highly probative to Defendants’ 

claims of self-defense and defense of a family member. The State established that 

there were two possible murder weapons: the baseball bat, which Tom brought with 

him from the basement upon hearing the commotion upstairs, and the brick paver, 

which was already sitting on Molly’s dresser in the bedroom when the affray began. 

The brick paver’s presence in the master bedroom was never explained to the jury. 

The admission of Jack’s Dragonfly House statements would therefore have provided 

a reasonable answer to a significant and unanswered question: 

Ms. Reagan: Okay. And then tell me about this cinder 

block that you were talking about. Like a brick that your 

mom used?

Jack Corbett: Um, we were going to paint it, because we 

just – we just got flowers that we were going to plant in our 

front yard or back yard, and we were going to paint it so it 

would look pretty, and that – it was in my mom’s room, 

because it was raining earlier, and we already – we were 

going to paint it. We didn’t want it getting all wet. So we 

brought it inside, and my mom put it at her desk. And then 

that’s where it was.

(Emphasis added).

Like Sarah’s statements about Jason’s anger following her nightmare and 

appearance in Jason and Molly’s bedroom, Jack’s statement about the brick paver 

tends to corroborate Molly’s written statement from 2 August 2015. Moreover, no 
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61

other evidence admitted at trial is as material or as probative of Defendants’ version 

of events, and thus their defense, as either of these statements.

After finding that the children were unavailable to testify for purposes of N.C. 

Gen. Stat. § 8C-1, Rule 803, the trial court failed to consider the practical effect of 

that finding in conducting the rest of its analysis under the residual exception. See 

Triplett, 316 N.C. at 9, 340 S.E.2d at 741 (observing that “the necessity for use of the 

hearsay testimony often will be greater” and “the inquiry . . . may be less strenuous” 

under Rule 804(b)(5) than Rule 803(24), “since the declarant will be unavailable”). 

The trial court’s determination that there were insufficient “circumstantial 

guarantees of trustworthiness” to support admission of the children’s statements was 

“made on the basis of inaccurate and incomplete findings of fact used to reach 

unsupported conclusions of law.” Sargeant, 365 N.C. at 67, 707 S.E.2d at 198. 

Accordingly, the trial court erred by excluding the children’s statements during 

their interviews by Union County DSS personnel on 3 August 2015, and at the 

Dragonfly House on 6 August 2015. Moreover, for the reasons more fully explained

in Section VI below, the trial court’s exclusion of this evidence prejudiced Defendants’ 

ability to present a complete and meaningful defense. See id. at 68, 707 S.E.2d at 198 

(“As a matter of fundamental fairness, the exclusion of [the co-conspirator’s] 

statement deprived the jury of evidence that was relevant and material to its role as 

finder of fact.”).
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B. Bloodstain Pattern Analysis

We next address Defendants’ challenge to the testimony of Stuart James, the 

State’s expert witness in bloodstain pattern analysis. Defendants contend that 

James’s testimony regarding the untested blood spatter on the underside hem of 

Tom’s boxer shorts and the bottom of Molly’s pajama pants was not sufficiently 

reliable for admission under N.C. Gen. Stat. § 8C-1, Rule 702(a). We agree. 

1. Issue Preservation

During voir dire, Defendants raised a targeted challenge to the reliability of 

James’s proposed testimony concerning his analysis of certain bloodstains on the 

underside of Tom’s boxer shorts and the bottom of Molly’s pajama pants. Wendell 

Ivory, a forensic scientist with the North Carolina State Crime Laboratory, had 

testified the previous day that, unlike stains appearing elsewhere on these and other 

articles of clothing worn by Defendants during the altercation with Jason, the stains 

at issue never received even basic, or “presumptive,” testing to confirm the presence 

of blood.

Defendants questioned James about several of the conclusions in his 

“Supplementary Report of Bloodstain Pattern Analysis,” which James drafted on 16

February 2016 after traveling to North Carolina to examine certain bloodstained 

evidence, including Tom’s boxer shorts and Molly’s pajamas. Defendants challenged 

the following conclusions from James’s three-page Supplementary Report:
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 The impact spatters on the front underside hem of 

the left leg of the shorts are consistent with the 

wearer of the shorts close to and above the source of 

spattered blood. The source of the impact spatters 

is most likely the head of Jason Corbett while it was 

close to the floor in the bedroom.

. . . .

 The impact spatters on the front lower legs and cuff 

of . . . the pajama bottoms are consistent with the 

wearer in proximity to Jason Corbett when he was 

close to the floor when blows were struck to his head.

James acknowledged that because none of the stains underlying these 

conclusions were ever submitted for testing—a fact that he did not learn until the day 

before he testified in court—James could not state “with a scientific certainty” that 

the stains on either garment were, in fact, blood. James also conceded that he had 

never seen—neither in person nor via photograph—Tom wearing the boxer shorts, 

and consequently, he did not know how the boxer shorts “laid on [Tom’s] body” or 

whether “the cuff was flipped up or down or anything along those lines[.]” 

Nevertheless, James was permitted to testify that the State’s failure to test the 

evidence in question did not “really . . . change much of [his] opinion. It is still impact 

spatter with the wearer of the shorts in proximity with the source of the blood.” When 

the trial court asked whether James “consider[ed] the opinions that [he’s] offered and 

as outlined in both of these reports to be the product of reliable principles and 

methods in bloodstain pattern analysis[,]” James responded, “Yes, I do.”
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64

Noting that James’s own peer-reviewed treatise, The Analysis of Blood and 

Forensic Serology, mandates that “an identification of blood be established to a 

scientific certainty before it can be presented in court[,]” Defendants asserted that 

the proposed expert testimony was not “properly before this Court, pursuant to 702-

(a).” More specifically, Defendants contended that (1) the challenged testimony was 

not “based on sufficient facts or data,” in that James had not been provided with the 

necessary information “to render that particular opinion within the broader scope of 

his other opinions”; and (2) as a result, James was not provided “the opportunity to 

apply the principles and methods reliabl[y] to the facts in this case.”

At the conclusion of voir dire, the trial court ruled that, notwithstanding the 

failure to identify the stains as blood to “a scientific certainty,” James would be 

permitted to testify to his expert opinion before the jury. 

Our dissenting colleague concludes that Defendants waived appellate review 

of this issue because, despite their careful and extensive objections during voir dire, 

Defendants failed to object in the presence of the jury when the evidence was actually 

introduced at trial. Dissent at 43. However, the transcript reveals that Defendants 

did, in fact, timely object, and did so on multiple occasions before the jury throughout 

James’s testimony. This issue was properly preserved for appellate review.

Tom’s counsel first objected when the State tendered James as an expert in the 

field of bloodstain pattern analysis. Defendants did not object throughout James’s 
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65

testimony providing a general overview of the field of bloodstain pattern analysis, nor 

did they raise any substantive objections while James began to testify to his 

conclusions regarding the blood spatter at the scene in the instant case.

However, Defendants immediately objected when the State proffered James’s 

“Supplementary Report of Bloodstain Pattern Analysis” containing his comments and 

conclusions concerning, inter alia, Tom’s boxer shorts and Molly’s pajamas, which

were the subject of Defendants’ objections during voir dire. The trial court admitted 

James’s Supplementary Report as State’s Ex. 200 over Defendants’ explicit objections

to James’s conclusions and supporting testimony. Additionally, Defendants later 

objected when the State submitted photographs of Tom’s boxer shorts and Molly’s 

pajamas, which James enhanced under his digital microscope; the trial court 

overruled Defendants’ objections and admitted the photos as State’s Ex. 201-215 and 

216-237, respectively. Moreover, when the State’s direct examination of James 

continued to a second day, Defendants renewed their previous objections for the 

record in the presence of the jury before his testimony resumed.

It is, therefore, clear that Defendants properly objected and preserved this 

issue for appeal, and we proceed to the merits of their argument. 

2. Rule 702(a)

Defendants contend that the trial court erred by admitting James’s expert 

testimony regarding the untested stains on the underside of Tom’s boxer shorts and 
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66

the bottom of Molly’s pajama pants, because the testimony did not satisfy Rule 

702(a)’s reliability test or the expert’s own admitted standards for reliability. We

agree.

“Whether expert witness testimony is admissible under Rule 702(a) is a 

preliminary question that a trial judge decides pursuant to” N.C. Gen. Stat. § 8C-1, 

Rule 104(a). State v. McGrady, 368 N.C. 880, 892, 787 S.E.2d 1, 10 (2016) (citations 

omitted). 

In answering this preliminary question, the trial judge is 

not bound by the rules of evidence except those with respect 

to privileges. To the extent that factual findings are 

necessary to answer this question, the trial judge acts as 

the trier of fact. The court must find these facts by the 

greater weight of the evidence. As with other findings of 

fact, these findings will be binding on appeal unless there 

is no evidence to support them. 

Id. at 892-93, 787 S.E.2d at 10-11 (internal quotation marks and citations omitted).

The trial court must then determine, from its findings of fact, “whether the 

proffered expert testimony meets Rule 702(a)’s requirements of qualification, 

relevance, and reliability.” Id. at 893, 787 S.E.2d at 11. On appeal, we review the 

trial court’s ruling for abuse of discretion. Id. “[A] trial court may be reversed for 

abuse of discretion only upon a showing that its ruling was manifestly unsupported 

by reason and could not have been the result of a reasoned decision.” Id. (citation 

omitted).

Rule 702(a) provides:
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(a) If scientific, technical or other specialized knowledge 

will assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert 

by knowledge, skill, experience, training, or education, may 

testify thereto in the form of an opinion, or otherwise, if all 

of the following apply:

(1) The testimony is based upon sufficient facts or 

data.

(2) The testimony is the product of reliable principles 

and methods.

(3) The witness has applied the principles and 

methods reliably to the facts of the case.

N.C. Gen. Stat. § 8C-1, Rule 702(a). 

As noted above, “Rule 702(a) has three main parts, and expert testimony must 

satisfy each to be admissible.” McGrady, 368 N.C. at 889, 787 S.E.2d at 8. First, the 

witness must be “qualified as an expert,” such that the witness is “in a better position 

than the trier of fact to have an opinion on the subject[.]” Id. at 889, 787 S.E.2d at 9. 

Second, the expert testimony must be relevant, and must “assist the trier of 

fact to understand the evidence[.]” Id. at 889, 787 S.E.2d at 8. “But relevance means 

something more for expert testimony. In order to ‘assist the trier of fact,’ expert

testimony must provide insight beyond the conclusions that jurors can readily draw

from their ordinary experience.” Id. (internal citation omitted).

Third, and most pertinent to our analysis here, the expert testimony must be 

reliable. When evaluating the reliability of expert testimony, “[t]he primary focus of 

the inquiry is on the reliability of the witness’s principles and methodology, not on 

the conclusions that they generate[.]” Id. at 890, 787 S.E.2d at 9 (internal quotation 
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68

marks and citations omitted). “However, conclusions and methodology are not 

entirely distinct from one another, and . . . the court is not required to admit opinion 

evidence that is connected to existing data only by the ipse dixit of the expert.” Id. 

(internal quotation marks and citations omitted).

“The precise nature of the reliability inquiry will vary from case to case[,]” and 

“determining how to address the three prongs of the reliability test” is within the trial 

court’s discretion. Id. In the context of scientific testimony, McGrady delineates the 

following additional factors “from a nonexhaustive list” that may bear upon 

reliability:

(1) whether a theory or technique can be (and has been) 

tested; (2) whether the theory or technique has been 

subjected to peer review and publication; (3) the theory or 

technique’s known or potential rate of error; (4) the 

existence and maintenance of standards controlling the 

technique’s operation; and (5) whether the theory or 

technique has achieved general acceptance in its field.

Id. at 890-91, 787 S.E.2d at 9 (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 

579, 593-94, 125 L. Ed. 2d 469, 482-83 (1993)) (internal quotation marks omitted). 

Again, these “factors are part of a flexible inquiry, so they do not form a 

definitive checklist or test[.]” Id. at 891, 787 S.E.2d at 9-10 (citations and internal 

quotation marks omitted). “Whatever the type of expert testimony, the trial court 

must assess the reliability of the testimony to ensure that it complies with the threepronged test in Rule 702(a)(1) to (a)(3).” Id. at 892, 787 S.E.2d at 10. 
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69

3. Analysis

Defendants do not challenge James’s qualifications to testify as an expert in 

the field of bloodstain pattern analysis. Indeed, the record shows that James is 

unquestionably qualified to provide expert testimony on the subject. Rather, 

Defendants contend that James’s conclusions regarding the untested stains on the 

underside of Tom’s boxer shorts and the bottom of Molly’s pajama pants are not the 

product of reliable principles and methods applied reliably to the facts of this case. 

We agree. 

James coauthored a peer-reviewed treatise on the subject of bloodstain pattern 

analysis, which sets forth the methodology and standards governing the field. As 

established at trial, James’s treatise provides, inter alia: “Although it might seem 

that visual identification of a stain is blood, it would be sufficient to warrant further 

analysis of the material, proper scientific approach and legal requirements dictate 

that such an identification be established to a scientific certainty before it can be 

presented in court[.]” And when asked about the routine protocol and procedures 

used in conducting bloodstain pattern analysis, James testified, consistent with his 

treatise, that the stains should be subject to presumptive, confirmatory, and DNA 

testing—in that order—before an analysis of the spatter is conducted.

Yet, James’s analysis of the challenged evidence clearly contravened the 

reliability protocol established in his own treatise. James testified that he was able 
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70

to reach his ultimate conclusions concerning the stains on the underside of Tom’s 

boxer shorts and the bottom of Molly’s pajama pants, despite the State’s failure to 

submit those stains for even the most basic testing for the presence of blood 

(presumptive testing). James testified that he reached his conclusions based on the 

“physical characteristics” of the stains; he determined that their “location, size, shape, 

and distribution” were “very characteristic of blood spatter[.]” But again, James 

acknowledged that he could not testify to a scientific certainty that these stains were, 

indeed, blood.

James also testified that in conducting an analysis of bloodstained clothing, it 

is the “best practice” for an analyst to view a photograph of the person wearing the 

blood-spattered clothes. However, during cross-examination, James conceded that 

contrary to the best practice set forth in his treatise, he never viewed a photograph

of Tom “wearing just the boxer shorts.” In fact, “the only photographs that [he] 

received of [Tom] with his clothing was a different pair of shorts that he was wearing. 

Apparently the boxer shorts were beneath that. These shorts were given to him to 

wear.” As for Molly, James testified that the State provided him with just one 

photograph of her wearing the pajama pants. James agreed, however, that it was not 

readily apparent from that photograph how the pants actually fit Molly on the night 

of the incident. In the photograph, the pajama pants seem “longer than how pants 
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71

would typically fit a person[,]” and “[t]he rear portion . . . appears to be dragging on 

the ground or between her leg and flip flop[.]”

Notwithstanding James’s expertise in bloodstain pattern analysis, 

noncompliance with the reliability standards and protocol prescribed in one’s own 

treatise is inherently suspect, particularly when the treatise propounds that “proper 

scientific approach and legal requirements dictate that such an identification be 

established to a scientific certainty before it can be presented in court.” Cf. McGrady, 

368 N.C. at 891, 787 S.E.2d at 10 (noting that “[t]he federal courts have articulated 

additional reliability factors that may be helpful in certain cases, including . . . 

[w]hether the expert has unjustifiably extrapolated from an accepted premise to an 

unfounded conclusion”).

The State argues, and James similarly testified during voir dire, that testing 

the stains on the underside of Tom’s boxer shorts was unnecessary to James’s 

conclusions because the appropriate testing was performed on certain other stains

appearing on the front side of the boxer shorts. However, these assertions are 

inconsistent with James’s other testimony during voir dire that the spatters on the 

underside of Tom’s boxer shorts “have to be” the result of a separate blow “because 

on the inside of the hem – it’s not a soak-through from the outside so they would have 

to be coming up from down below.”
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Moreover, Defendants have never challenged the trial court’s admission of 

James’s testimony regarding those stains that received full presumptive, 

confirmatory, and DNA testing before James rendered his analysis. Without such 

testing, it seems nearly impossible to escape questions of how the testimony could be 

“based upon sufficient facts or data,” N.C. Gen. Stat. § 8C-1, Rule 702(a)(1), and 

whether “[t]he witness has applied the principles and methods reliably to the facts of 

the case,” id. § 8C-1, Rule 702(a)(3). See State v. Babich, 252 N.C. App. 165, 168, 797 

S.E.2d 359, 362 (2017) (“[E]ven if expert scientific testimony might be reliable in the 

abstract . . . the trial court must assess whether that reasoning or methodology 

properly can be applied to the facts in issue.” (citation and internal quotation marks 

omitted)).

In the present case, the State failed to enable James to testify in any reliable 

manner concerning his analysis of the blood spatter. James readily admitted that 

the underside of Tom’s boxer shorts had not received presumptive testing for the 

presence of blood, proper protocol per James’s treatise. He also conceded that the 

State never informed him that these stains had not been tested; indeed, he did not 

learn this information until the day before he testified.

Nevertheless, James testified that he concluded:

With respect to the small spatters on the front underside 

of the left leg of the shorts, these were consistent with the 

wearer of the shorts close to and above the source of the 

spattered blood. To what extent, I can’t really say. In order 
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73

for the stains to get to that location on the inside of the leg, 

they would have to be traveling, you know, at least 

somewhat upward in order to do that. My conclusion there 

was the source of the impact spatters is most likely the head 

of Jason Corbett while it was close to the floor in the 

bedroom.

(Emphases added). 

This unsupported conclusion is more emphatic than even that which James 

provided regarding the tested bloodstains on the front of Tom’s boxer shorts:

[M]y conclusions are that the spatters on the front of these 

boxer shorts were confirmed as impact spatters. . . . [T]he 

stains were embedded within the weave of the fabric, which 

is pretty much the definition of impact spatter on clothing. 

And this had me – my conclusions then are these impact 

spatters are consistent with the wearer of these boxer 

shorts in proximity to the victim Jason Corbett when blows 

were struck to his head. The head being the source of the 

blood in this particular case.

Although James referenced other stains on Defendants’ clothing and concluded 

that they were consistent with the wearer being in Jason’s general proximity at the 

time of impact, the untested stains on the underside of Tom’s boxer shorts and Molly’s 

pajama pants were the only stains that allowed James to specifically conclude that 

Jason’s head was near or on the floor at the time of impact. Given how critical these 

particular stains were to supporting James’s ultimate conclusions, it is reasonable to 

expect the State to ensure that this evidence received all of the necessary and 

recommended testing before expert testimony regarding the source and content of the 

stains could be admitted at trial. 
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To be sure, it would certainly be excessive and unreasonable to require that 

the State test every trace of forensic evidence discovered at a crime scene in order for

expert testimony to pass muster under Rule 702. As James explained during voir 

dire, “DNA laboratories often . . . only allow maybe five or six samples to be 

submitted” because of the burden that testing additional samples would have on 

laboratories. In this case, however, the central value of James’s testimony—that 

which is most probative of the State’s theory of the case, and consequently, the most 

prejudicial to Defendants’ cases—specifically relates to the untested stains on the 

underside of Tom’s boxer shorts and the bottom of Molly’s pajama pants, which James 

opined tend to show impacts to Jason’s head while it was near the floor. Moreover, 

the State had ample opportunity to ensure that these stains were among those 

submitted for testing for the presence and source of the purported blood, but failed to 

do so. 

At trial, Ivory testified that he was responsible for testing certain evidence at 

the request of the Davidson County Sheriff’s Office. Ivory explained that he routinely 

tests materials in accordance with a “submission form,” in which the submitting 

agency “detail[s] specifics of the case as well as any items to be submitted for testing 

and the type of testing that is requested[.]” According to Ivory, “In this particular 

case certain areas were asked to be tested.” When asked whether anyone requested 

that he test the stains underneath the hem of Tom’s boxer shorts or the bottom of 
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75

Molly’s pajama pants, Ivory responded that no one requested that those areas be 

tested. James, however, testified that he had previously suggested that the State test 

“at least some of the stains that [he] had marked. . . . They did some but not all.”

By failing to ensure that suspected blood stains are appropriately tested for 

the presence of human blood, the State knowingly risked depriving its expert witness 

of the ability to conduct a blood spatter analysis in accordance with established and 

reliable principles and methods. This risk is exacerbated in cases where, as here, the 

expert testimony regarding those specific stains is both a crucial element of the 

State’s case, and highly prejudicial to Defendants.

Here, James simply was not provided with all the necessary information to 

provide reliable expert testimony that satisfied the requirements of Rule 702(a). As 

Defendants asserted during voir dire, James’s inability to “state to a scientific 

certainty that [it] is blood” was “not his fault[,]” but the State’s:

[I]f we don’t even have presumptive testing on a different 

set of stains, on a completely different side of this pair of 

underwear that’s coming from a different event, that 

reaches a different conclusion, then if we don’t even have 

presumptive testing on that, let alone confirmatory. I 

think, according to [James’s] book, that’s not something 

that’s properly before this Court, pursuant to 702-(a). I just 

don’t think that it is. Again, that’s not Mr. James’[s] fault. 

He was not provided that piece of information. I’m 

assuming that could have been tested at some point over 

the last couple of years. Again, it wasn’t – that’s not his 

fault. His own words, he cannot state to a scientific 

certainty that is blood. If you can’t, that’s not proper 

evidence before this Court and before this jury.
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For the foregoing reasons, James’s testimony regarding the untested stains on 

Tom’s boxer shorts and Molly’s pajama pants was based upon insufficient facts and 

data, and accordingly, could not have been the product of reliable principles and 

methods applied reliably to the facts of this case. Id. § 8C-1, Rule 702(a)(3).

Therefore, the trial court abused its discretion by admitting this testimony.

4. Prejudice

“An error is not prejudicial unless there is a reasonable possibility that, had 

the error in question not been committed, a different result would have been reached 

at the trial.” State v. Mason, 144 N.C. App. 20, 27, 550 S.E.2d 10, 16 (2001) (citation 

and internal quotation marks omitted). “[T]he erroneous admission of evidence is 

reversible if it appears reasonably possible that the jury would have reached a 

different verdict without the challenged evidence.” Id. at 28, 550 S.E.2d at 16. 

Ultimately, the only part of James’s testimony that could have possibly 

assisted the jury in reaching its verdict is James’s erroneously admitted conclusion 

that the untested stains on Tom’s boxer shorts and Molly’s pajama pants were 

consistent with a strike to Jason’s head “while it was close to the floor in the 

bedroom.” However, it is difficult to view this testimony as anything “more than mere 

conjecture[,]” given that James’s analysis was grounded neither in actual data nor 

the principles and methods outlined in his treatise and testimony to establish 

reliability. See Babich, 252 N.C. App. at 172, 797 S.E.2d at 364 (“[W]here, as here, 
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77

the expert concedes that her opinion is based entirely on a speculative assumption 

about the defendant—one not based on any actual facts—that testimony does not 

satisfy the Daubert ‘fit’ test because the expert’s otherwise reliable analysis is not 

properly tied to the facts of the case.”).

If this is the bedrock of James’s scientific inquiry concerning the challenged 

evidence, then it is unclear why he was in a better position to make this ultimate 

determination than the lay members of the jury. Without viewing a photograph of 

Tom wearing the boxer shorts, as James testified was the appropriate practice in his 

field, James was unable to discern the position of Tom’s body relative to Jason at the 

time of impact. And given the State’s failure to ensure that the stains were 

appropriately tested and verified as Jason’s blood, James was no better positioned 

than the jury to decide with any scientific certainty whether the relevant stains were, 

in fact, blood—or its source. Mere observations of the “physical characteristics” of the 

stains and their locations are not determinations that the jury is incapable of making 

on its own. Cf. McGrady, 368 N.C. at 895, 787 S.E.2d at 12 (“Though [the] defendant 

served in the military, he did not testify that he relied on any specialized training in 

threat assessment when he evaluated the threat that [the victim] posed to his life 

and the life of his son. Nor was there any evidence that he relied on anything other 

than common experience and instinct when he did so. Jurors possess this experience 
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78

and instinct as well, which is exactly why they are tasked with deciding whether a 

defendant has acted in self-defense.” (emphasis added)).

Lastly, it is important to note that North Carolina’s 2011 amendment to Rule 

702 substantially “chang[ed] the level of rigor that our courts must use to scrutinize 

expert testimony before admitting it.” Id. at 892, 787 S.E.2d at 10; see also id.

(observing that our previous Howerton standard “was decidedly less rigorous than 

the Daubert approach” incorporated with the 2011 adoption of the language from the 

federal rule (internal quotation marks and citation omitted)). Rule 702 as amended 

“necessarily strikes a balance between competing concerns since the testimony can 

be both powerful and quite misleading to a jury because of the difficulty in evaluating 

it.” Id. (citation and internal quotation marks omitted). 

In this case, James’s testimony had the powerful effect of bolstering the State’s 

claim that Jason was struck after and while he was down and defenseless. However, 

given that James’s testimony failed to assist the jury in determining whether this 

was, in fact, the case, the testimony could only serve to unduly influence the jury to 

reach a conclusion that it was fully capable of reaching on its own. Given this undue 

influence, as explained in Section VI below, “it appears reasonably possible that the 

jury would have reached a different verdict without the challenged evidence.” Mason, 

144 N.C. App. at 28, 550 S.E.2d at 16.

C. Tom’s Stricken Testimony
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Defendants next argue that the trial court erred in striking Tom’s testimony 

that he “hear[d] Molly scream[,] ‘Don’t hurt my dad.’ ” The challenged exchange 

occurred on direct examination, during Tom’s account of the fatal altercation with 

Jason:

[DEFENSE COUNSEL:] And what happened after that?

[TOM:] And that’s – you know, if I can get any more afraid, 

that was it. I can’t see him. It’s dark in the bedroom. I’m 

thinking the next thing is going to be a bat in the back of 

the head. I’m on the ground. I hear Molly scream “Don’t 

hurt my dad.”

[THE STATE:] Objection, move to strike.

THE COURT: That’s sustained. Don’t consider that, 

ladies and gentlemen.

As an initial matter, we note that although the State did not “stat[e] the 

specific grounds” for its objection to Tom’s testimony, the parties nevertheless seem 

to agree that the basis for the State’s objection—hearsay—was “apparent from the 

context.” N.C.R. App. P. 10(a)(1) (“In order to preserve an issue for appellate review, 

a party must have presented to the trial court a timely request, objection, or motion, 

stating the specific grounds for the ruling the party desired the court to make if the 

specific grounds were not apparent from the context.”).

The trial court erroneously sustained the State’s objection to Tom’s testimony 

because Molly’s out-of-court statement was either non-hearsay, or alternatively, 

admissible hearsay. The prohibition against the admission of hearsay “does not 
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preclude a witness from testifying as to a statement made by another person when 

the purpose of the evidence is not to show the truth of such statement but merely to 

show that the statement was, in fact, made.” State v. Holder, 331 N.C. 462, 484, 418 

S.E.2d 197, 209 (1992) (citation omitted). Thus, when an out-of-court “statement is 

offered for a purpose other than proving the truth of the matter asserted, it is not 

hearsay” at all. Id.

“The probative value of a nonhearsay statement does not depend, in whole or 

in part, upon the competency and credibility of any person other than the witness.” 

Valentine, 357 N.C. at 524, 591 S.E.2d at 856 (citations and internal quotation marks 

omitted). “Further, a nonhearsay statement does not put the truth or falsity of the 

statement at issue.” Id.; see also id. at 521, 524, 591 S.E.2d at 854, 856 (explaining 

that the statement “You know where we are from and if somebody pulls a knife or a 

gun out on you, you are supposed to get smoked” was offered not for its truth—“that 

this was in fact the custom in the area where [the] defendant and [his brother] were 

raised”—but instead “to show that [the] defendant intended to shoot the victim”).

Here, Tom’s testimony was not offered to prove the truth of Molly’s 

statement—i.e., that Jason was, in fact, attempting to “hurt [her] dad.” Nor did the 

relevance of this statement depend upon its truth. See State v. Alston, 131 N.C. App. 

514, 517, 508 S.E.2d 315, 317 (1998) (rejecting the defendant’s hearsay challenge to 

the admission of his child’s statement “Daddy’s got a gun,” where the evidence was 
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admitted solely for its effect on the officer’s state of mind and to “explain his 

subsequent conduct”), superseded by statute in part on other grounds, as stated in 

State v. Gaither, 161 N.C. App. 96, 103, 587 S.E.2d 505, 510 (2003), disc. review 

denied, 358 N.C. 157, 593 S.E.2d 83 (2004).

Molly’s statement was offered and admissible for the non-hearsay purpose of 

illustrating Tom’s then-existing state of mind—a particularly relevant issue, given 

Defendants’ claims of self-defense and defense of another. See State v. Faucette, 326 

N.C. 676, 683, 392 S.E.2d 71, 74 (1990) (concluding that the victim’s statements 

regarding the defendant’s threats were admissible under Rule 803(3) because they 

revealed the victim’s “then-existing fear of [the] defendant” and explained “why she 

did not want [him] visiting her home,” which was relevant to show that the defendant 

“knew he was entering the . . . home without consent,” and “to rebut [the] defendant’s 

self-defense inferences that he did not start shooting until he saw her reach for her 

gun” (quotation marks omitted)); see also N.C. Gen. Stat. § 8C-1, Rule 803(3) 

(excepting from the rule against hearsay a “statement of the declarant’s then existing 

state of mind, emotion, sensation, or physical condition”). 

The State, however, contends that “[t]he alleged statement, while self-serving, 

was not relevant. . . . Immediately prior to his stricken testimony of what [Molly] 

allegedly said, [Tom] testified that Jason had just shoved him across the bed. The 

alleged statement of [Molly] added nothing to [Tom]’s state of mind.” Our dissenting 
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colleague echoes this sentiment, concluding that “[e]ven assuming, arguendo, that 

the trial court erred by sustaining the State’s objection,” Defendants are unable to 

show prejudice, because “Tom had already testified about circumstances illustrating 

the reasonableness of his fear and apprehension, and Molly’s statement – made after 

the altercation had been well underway – was of mild, if any, additional value.” 

Dissent at 49. These assertions miss the point.

Despite the number and complexity of the issues presented, the outcome of this 

case ultimately turns on whether Defendants’ use of deadly force was lawful under 

the circumstances. Pursuant to N.C. Gen. Stat. § 14-51.3, our statute governing selfdefense and defense of others:

(a) A person is justified in using force, except deadly force, 

against another when and to the extent that the person 

reasonably believes that the conduct is necessary to 

defend himself or herself or another against the other’s 

imminent use of unlawful force. However, a person is 

justified in the use of deadly force and does not have a 

duty to retreat in any place he or she has the lawful right 

to be if . . . the following applies:

(1) He or she reasonably believes that such force is 

necessary to prevent imminent death or great bodily 

harm to himself or herself or another.

. . . .

(b) A person who uses force as permitted by this section is 

justified in using such force and is immune from civil or 

criminal liability for the use of such force . . . .

N.C. Gen. Stat. § 14-51.3 (emphases added).
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Each of the central issues of this appeal ultimately concerns whether the trial 

court properly admitted or “excluded evidence that was relevant to [Defendants’] 

belief that [their] li[ves] w[ere] threatened in relation to [their] plea[s] of self-defense” 

and defense of others. State v. Webster, 324 N.C. 385, 389, 378 S.E.2d 748, 751 (1989). 

“In determining whether there was any evidence of self-defense presented, the 

evidence must be interpreted in the light most favorable to [the] defendant.” Id. at 

391, 378 S.E.2d at 752. 

It is the jury, not the trial court, which must determine the reasonableness of 

the defendant’s belief under the circumstances, “unless there is no evidence from 

which a jury could conclude [the] defendant’s belief is reasonable.” Id. at 393, 378 

S.E.2d at 753; cf. State v. Harvey, 372 N.C. 304, 309, 828 S.E.2d 481, 484 (2019) 

(“Despite his extensive testimony recounting the entire transaction of events from his 

own perspective, [the] defendant never represented that [the victim’s] actions in the 

moments preceding the killing had placed [the] defendant in fear of death or great 

bodily harm such that [the] defendant reasonably believed that it was necessary to 

fatally stab [the victim] in order to protect himself.”). “A jury should, as far as 

possible, be placed in [the] defendant’s situation and possess the same knowledge of 

danger and the same necessity for action, in order to decide if [the] defendant acted 

under reasonable apprehension of danger to his person or his life.” Webster, 324 N.C.

at 392, 378 S.E.2d at 753.
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Here, when viewed in the light most favorable to Defendants, “[t]he excluded 

testimony went to the heart of [Tom’s] self-defense claim[,]” as well as his claim of 

defense of Molly. Id. at 393, 378 S.E.2d at 753. In order to fully appreciate the extent 

to which “sustaining the objection . . . prevented [Tom] from completing his side of 

the story[,]” id., it is necessary to review the challenged testimony in full context:

[DEFENSE COUNSEL:] What happened after you came 

down the hallway? 

[TOM:] Okay. Then we come back down the hallway and 

we emerged from the hallway. We are back in the bedroom 

and so I get what I think is a chance to hit him, as I have 

before, in the back of the head, only this time he’s ready for 

me. And he puts up his left hand and catches the bat 

perfectly right in his palm as I swing the bat at the back of 

his head. But in the process, Molly goes free. She escapes 

to his right or he let’s [sic] her go. Anyway, the two of them 

separate. But now he’s got the bat. And I’m still holding 

the bat. But he cocks his arm like this (demonstrated). 

Jason is right-handed, that’s my experience. This is with 

his left hand. He cocks his hand and he punches out 

(demonstrating) and shoves me across the entire bed, the 

width of the bed, and I’m on the floor with my back to him 

and face down on the carpet. And –

Q. And what happened after that?

A. And that’s – you know, if I can get any more afraid, that 

was it. I can’t see him. It’s dark in the bedroom. I’m 

thinking the next thing is going to be a bat in the back of 

the head. I’m on the ground. I hear Molly scream “Don’t 

hurt my dad.”

[THE STATE:] Objection, move to strike.

THE COURT: That’s sustained. Don’t consider that, 
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ladies and gentlemen.

[DEFENSE COUNSEL:] All right.

[TOM:] And I’m scrambling. I remember thinking 

irrationally now that I lost my glasses in this exchange and 

that I need to find my glasses. You know, I’m shook up, 

and then I realize how stupid that is. I’m better off without 

my glasses. Because if you are in a fight, you don’t want 

your glasses jammed into your eyes. But I don’t know how 

long it took me. It was a shock to get thrown across the 

bedroom. But I get up. And I turn over and I get up and 

now I see Jason essentially where he was, which is 

essentially where we started, inside the door to the 

bedroom, just a step or two toward that door from the 

hallway to the right of the bed as you enter the bedroom, 

and he’s got the bat, and Molly is by the nightstand in the, 

you know – it’s between the wall on that side and the bed, 

so she’s over there. She’s trapped. She can’t get past him.

[THE STATE:] Objection to what Molly may or may 

not be able to do.

[DEFENSE COUNSEL:] His observations.

THE COURT: That’s overruled. He may continue.

[TOM:] And I’m on the other side of the room at the end of 

the bed. And things look pretty bleak. He’s got the bat. 

He’s in a good – looks like he’s in a good athletic position. 

He has his weight down on the balls of his feet. He’s kind 

of looking between me and Molly. And so I decided there’s 

– well, I decided to rush him and try to get ahold of the bat.

Viewed in full context, the significance of Tom’s testimony regarding Molly’s 

statement “Don’t hurt my dad” is manifest. Not only was this statement directly 

“relevant to [Tom]’s belief that his life was threatened in relation to his plea of self-
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defense[,]” Webster, 324 N.C. at 389, 378 S.E.2d at 751, but for reasons more fully 

explained below, the exclusion of this testimony also bore upon the question of Tom’s 

ultimate role in the affray—i.e., whether the evidence supported a jury instruction on 

the aggressor doctrine, see State v. Holloman, 369 N.C. 615, 628, 799 S.E.2d 824, 833 

(2017) (holding that the provisions of N.C. Gen. Stat. § 14-51.4(2)(a) “allowing an 

aggressor to regain the right to use defensive force under certain circumstances do 

not apply in situations in which the aggressor initially uses deadly force against the 

person provoked”).

“In light of the circumstances of this case and the trial court’s instructions on 

self-defense,” Webster, 324 N.C. at 393, 378 S.E.2d at 753, as explained in Section VI, 

we conclude that the trial court committed prejudicial error in striking Tom’s 

testimony that he “hear[d] Molly scream[,] ‘Don’t hurt my dad.’ ” Cf. id. at 392-94, 

378 S.E.2d at 753-54 (awarding the defendant a new trial where the trial court 

“erroneously sustained the State’s objection to the question about whether [the] 

defendant felt that his life was threatened because that evidence was highly relevant 

to the crucial question of [the] defendant’s statement of mind at the time of the 

shooting, his knowledge and belief of danger, and his knowledge and belief of the 

necessity for action in relation to his plea of self-defense”).

V. Instructional Error
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We next address the trial court’s decision to instruct the jury on the aggressor 

doctrine with respect to Tom’s claim that he was, at all times, acting in self-defense 

and in defense of his daughter, Molly. Tom argues that the trial court committed 

reversible error by instructing the jury that he would not be entitled to the full benefit 

of self-defense or defense of a family member if the jury found that he were the initial 

aggressor in the altercation with Jason. We agree.

A. Standard of Review

“The jury charge is one of the most critical parts of a criminal trial.” State v. 

Lee, 370 N.C. 671, 674, 811 S.E.2d 563, 565 (2018) (citation omitted). The trial court’s 

duty is momentous: to deliver a clear instruction on the law arising from all of the 

evidence presented, and to do so “in such manner as to assist the jury in 

understanding the case and in reaching a correct verdict.” Holloman, 369 N.C. at 

625, 799 S.E.2d at 831 (citation omitted). We review de novo parties’ challenges to 

the trial court’s decisions regarding jury instructions. State v. Osorio, 196 N.C. App. 

458, 466, 675 S.E.2d 144, 149 (2009).

“The jury must not only consider the case in accordance with the State’s theory 

but also in accordance with [the] defendant’s explanation.” State v. Guss, 254 N.C. 

349, 351, 118 S.E.2d 906, 907 (1961) (per curiam). Consequently, “[w]here there is 

evidence that [the] defendant acted in self-defense, the court must charge on this 

aspect even though there is contradictory evidence by the State or discrepancies in 
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[the] defendant’s evidence.” State v. Dooley, 285 N.C. 158, 163, 203 S.E.2d 815, 818 

(1974); see also Lee, 370 N.C. at 677, 811 S.E.2d at 568 (Martin, C.J., concurring) 

(asserting that the principle articulated in Dooley “should apply equally to defense of 

another” where the evidence supports such an instruction).

In considering whether to deliver a jury instruction on self-defense, the trial 

court generally must view the evidence in the light most favorable to the defendant. 

State v. Mumma, 372 N.C. 226, 239 n.2, 827 S.E.2d 288, 297 n.2 (2019) (citing 

Holloman, 369 N.C. at 625, 799 S.E.2d at 831). However, 

this principle does not apply to the determination of 

whether the trial court erred by addressing the “aggressor” 

doctrine in the course of instructing the jury concerning the 

law of self-defense. In determining whether a self-defense 

instruction should discuss the “aggressor” doctrine, the 

relevant issue is simply whether the record contains 

evidence from which the jury could infer that the defendant 

was acting as an “aggressor” at the time that he or she 

allegedly acted in self-defense. 

Id. (citing State v. Cannon, 341 N.C. 79, 82-83, 459 S.E.2d 238, 241 (1995)). 

“When there is no evidence that a defendant was the initial aggressor, it is 

reversible error for the trial court to instruct the jury on the aggressor doctrine of 

self-defense.” State v. Juarez, 369 N.C. 351, 358, 794 S.E.2d 293, 300 (2016). Where 

the trial court delivers an aggressor instruction “without supporting evidence, a new 

trial is required.” State v. Vaughn, 227 N.C. App. 198, 202, 742 S.E.2d 276, 278 

(citation and quotation marks omitted), disc. review denied, 367 N.C. 221, 747 S.E.2d 
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526 (2013).

B. Aggressor Doctrine

Simply stated, the aggressor doctrine denies a defendant “the benefit of selfdefense if he was the aggressor in the situation.” Juarez, 369 N.C. at 358, 794 S.E.2d

at 300. An individual who “aggressively and willingly enter[s] into the fight without 

legal excuse or provocation” is properly deemed “the aggressor in bringing on the 

difficulty[.]” State v. Mize, 316 N.C. 48, 51-52, 340 S.E.2d 439, 441 (1986). 

Courts consider a variety of factors in determining which party was the 

aggressor, including the circumstances that precipitated the altercation; the presence 

or use of weapons; the degree and proportionality of the parties’ use of defensive force; 

the nature and severity of the parties’ injuries; or whether there is evidence that one 

party attempted to abandon the fight. See, e.g., State v. Spaulding, 298 N.C. 149, 

155, 257 S.E.2d 391, 395 (1979) (determining that the victim was the aggressor in a 

fatal prison-yard knife fight where the victim continued to advance upon the 

defendant “with his hand jammed into his pocket,” while the defendant, who 

anticipated the attack and “arm[ed] himself as a precaution,” used no “language 

tending to incite an affray” and “made no show of force”); State v. Washington, 234 

N.C. 531, 534, 67 S.E.2d 498, 500 (1951) (“All the evidence offered at the trial below 

shows that the deceased, and not the defendant, was the aggressor. The defendant’s 

evidence indicates that she was entirely free from fault and never fought willingly 
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and unlawfully. Her evidence further shows that the deceased made a violent attack 

upon her. . . . She begged the deceased to stop beating her, and it was only after he 

announced his intention to take her elsewhere and kill her that she stabbed him in a 

vital spot.”).

The State’s arguments, and the dissent’s conclusion with respect to this issue,

heavily rely upon the disparity of injuries suffered by the parties. The State disputes 

Tom’s contention that the State failed to introduce any evidence to contradict 

Defendants’ version of events, and counters that “the lack of any injuries to [Tom], 

compared with the devastating injuries to Jason, is sufficient evidence to support the 

aggressor instruction.” According to the State, this Court “held exactly that” in State 

v. Presson, 229 N.C. App. 325, 747 S.E.2d 651 (2013). For support, the State cites the 

following portion of our Court’s opinion in Presson: “Further, the lack of injuries to

[the] defendant, compared to the nature and severity of the wounds on [the victim] at 

his death, is sufficient evidence from which a jury could find that [the] defendant was 

the aggressor or that [the] defendant used excessive force.” 229 N.C. App. at 330, 747 

S.E.2d at 656.

This portion of Presson, however, addresses the sufficiency of the State’s 

evidence to withstand the defendant’s motion to dismiss the charges, based on his 

claim of perfect self-defense. See id. Although the defendant in Presson also 

contended that the trial court erred by instructing the jury that he “would lose the 
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right to self-defense if he was the aggressor,” id., review of this issue was limited to 

plain error, due to the defendant’s failure to object to the jury instructions at trial, id. 

at 331, 747 S.E.2d at 656. See id. (“[The d]efendant bases this claim on similar 

grounds as those stated in his first argument, arguing that there is insufficient 

evidence to support the finding that [he] was in any way the aggressor in the fatal 

confrontation. But, as we have set forth above, the State did put forth sufficient 

evidence from which a reasonable jury could find that [the] defendant was the 

aggressor or used excessive force. Accordingly, we find no error with the jury 

instruction explaining that [the] defendant was not entitled to perfect self-defense if 

he was found to be the aggressor.”).

The distinction between the standard of review of a motion to dismiss and that 

of plain error is significant. Compare id. at 329, 747 S.E.2d at 655 (noting that a 

motion to dismiss based on perfect self-defense requires the trial court to consider 

“whether the State has presented substantial evidence which, when taken in the light 

most favorable to the State, would be sufficient to convince a rational trier of fact that 

the defendant did not act in [perfect] self-defense”), and State v. Smith, 300 N.C. 71, 

78-79, 265 S.E.2d 164, 169 (1980) (“Substantial evidence is such relevant evidence as 

a reasonable mind might accept as adequate to support a conclusion.”), with Mumma, 

372 N.C. at 241, 827 S.E.2d at 298 (“As a result of [the] defendant’s failure to object 

to the delivery of an ‘aggressor’ instruction to the jury before the trial court, [the] 
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defendant is only entitled to argue that the delivery of the ‘aggressor’ instruction 

constituted plain error, under which [the] defendant is not entitled to an award of 

appellate relief on the basis of the alleged error unless he can demonstrate that a 

fundamental error occurred at trial that had a probable impact on the jury’s finding 

that the defendant was guilty[.]” (citations, quotation marks, and footnote omitted)), 

and Juarez, 369 N.C. at 358-59, 794 S.E.2d at 300 (concluding that it was “not 

necessary . . . to decide whether an instruction on the aggressor doctrine was 

improper,” because the defendant failed to meet his burden, under plain error review, 

of showing that “absent the erroneous instruction, it is probable that the jury would 

have found that he acted in perfect self-defense” and “would not have rejected his 

claim of self-defense for other reasons”). 

The cases that the dissent and the State cite for the proposition that a disparity 

in injuries is, standing alone, sufficient evidence to support an instruction on the 

aggressor doctrine were reviewed for plain error. See Mumma, 372 N.C. at 241-42, 

827 S.E.2d at 298; Juarez, 369 N.C. at 357-58, 794 S.E.2d at 299-300; Presson, 229 

N.C. App. at 330-31, 747 S.E.2d at 656. However, the State cites no case, and we are 

unaware of any, to so hold upon review for preserved error. Tom’s challenge to the 

inclusion of the aggressor instructions was properly preserved at trial; therefore, 

Mumma, Juarez, Presson, and other plain error cases with a heightened review for 

prejudice are inapposite here.
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At the charge conference in the instant case, defense counsel requested that 

the trial court remove all aggressor language from the proposed pattern instructions, 

asserting that there was no evidence to support “that anyone was the aggressor but 

Jason.” The State conceded that it had “no objection to the Court declining to instruct 

on the aggressor issue as to Defendant Molly Corbett.” As to Tom, however, the State 

contended that there was “conflicting evidence as to which party was the aggressor,” 

because “there was comment about when the bat entered the equation[.]” The State 

noted that Tom “brought the one physical deadly weapon” into the fight, in that “the 

bat entered the equation when [Tom] was standing outside the room, heard an 

argument, and decided to barge in[.]”

To the extent that the trial court based its ruling on Tom’s decision to arm 

himself with the baseball bat before joining the affray, this ruling was in error. The 

mere fact that a defendant was armed is not evidence that he was the aggressor if he 

made no unlawful use of his weapon. See Spaulding, 298 N.C. at 155, 257 S.E.2d at 

395 (“In going out into the yard, [the] defendant was going to a place where he had a 

right to be. In arming himself as a precaution, in the context of this case, [the] 

defendant was not at fault vis-à-vis the law of homicide so long as he did not use the 

knife or threaten [the] decedent with it until it became necessary or apparently 

necessary to do so in self-defense.” (internal citation omitted)); State v. Alston, 228 

N.C. 555, 557-58, 46 S.E.2d 567, 568-69 (1948) (awarding a new trial due to the trial 
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court’s erroneous denial of the defendant’s request for an instruction “that the fact 

that the defendant had a pistol in his pocket, but had made no unlawful use of it prior 

to the attack upon him by the deceased, would not deprive the defendant of his legal 

right of self-defense”); Vaughn, 227 N.C. App. at 203, 742 S.E.2d at 279-80 

(concluding that the “[d]efendant’s decision to arm herself and leave the vehicle, while 

perhaps unwise, was not, in and of itself, evidence that she brought on the difficulty, 

‘aggressively and willingly’ entered the fight, or intended to continue the 

altercation”); State v. Tann, 57 N.C. App. 527, 531, 291 S.E.2d 824, 827 (1982) 

(rejecting the State’s argument that the “defendant, who anticipated the 

confrontation, armed himself with a .38 caliber pistol, and failed to avoid the fight, 

was somehow responsible for causing the altercation. These observations do not in 

any way suggest that [the] defendant was the provocator . . . .” (citation omitted)).

The State also argued at the charge conference that Tom “assumed some 

degree of aggression after there was a pause when he was no longer under a 

continuous assault,” but nonetheless opted to rejoin the affray. In support of this 

argument, the State cited the portion of Tom’s testimony from which the State 

successfully moved to strike Molly’s statement, “Don’t hurt my dad”:

[THE STATE:] . . . The testimony from [Tom] from 

his direct and cross-examination was that after there had 

been strikes against [Jason] in the bedroom, in the hallway 

to the bath, in the bathroom, and then back into the 

bedroom, that [Jason] had caught the bat in his left hand, 

had then moved [Tom] claims, to have been flung all the 
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way across the room even to the ground. He went as far as 

to say he was expecting to get hit in the head with the bat, 

which was his perception that [Jason] had time to advance 

upon him and hit him with the bat. Instead he had enough 

time to realize he had lost his glasses and finds his glasses, 

then stands up and turns around and in this confined space 

sees [Jason]. Yes, holding the bat, but not advanced on him 

having not attacked him, having not advanced on [Molly], 

who [Tom] said escaped [Jason’s] grasp moments earlier 

and had moved over to the side away from him.

[Tom] describes very deliberating [sic] everything, 

evaluated the situation and made the choice, in his words, 

to rush [Jason]. He then arrested, in his testimony, the bat 

from [Jason] and proceeded to hit him in the head 

repeatedly. That would be some indication certainly at 

least as to [Tom] that at that point in time he assumed 

some degree of aggression after there was a pause when he 

was no longer under a continuous assault. Since we believe 

that’s a reasonable interpretation of the evidence, we ask 

that that instruction be kept.

Insofar as the trial court based its ruling upon the above argument, that 

decision was erroneous for two reasons. First, as discussed in Section IV(C) above, 

Tom’s testimony that he heard Molly scream, “Don’t hurt my dad,” was admissible 

and should not have been excluded. Proper admission of this testimony would have 

foreclosed the State’s argument during the charge conference that “there was a pause 

when [Tom] was no longer under a continuous assault.” Second, Jason was the initial 

aggressor, and the first person to use deadly force; therefore, Jason could not regain 

the right to use defensive force unless he first withdrew from the affray. 
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“Historically, . . . North Carolina law did not allow an aggressor using deadly 

force to regain the right to exercise the right of self-defense in the event that the 

person to whom his or her aggression was directed responded by using deadly force 

to defend himself or herself.” Holloman, 369 N.C. at 626, 799 S.E.2d at 831; see also 

id. at 626, 799 S.E.2d at 831-32 (explaining the limits of the common-law rule—that 

“if one takes life, though in defense of his own life, in a quarrel which he himself has 

commenced with intent to take life or inflict serious bodily harm, the jeopardy into 

which he has been placed by the act of his adversary constitutes no defense whatever, 

but he is guilty of murder” (citations and quotation marks omitted)). 

In 2011, however, “the General Assembly amended the law of self-defense in 

North Carolina to clarify that one who is not the initial aggressor may stand his 

ground, regardless of whether he is in or outside the home.” Lee, 370 N.C. at 675 n.2, 

811 S.E.2d at 566 n.2 (internal citation omitted). Our amended defensive force 

“statutes provide two circumstances in which individuals are justified in using deadly 

force, thus excusing them from criminal culpability.” Id. at 674, 811 S.E.2d at 566. 

Pursuant to N.C. Gen. Stat. § 14-51.3(a),

a person is justified in the use of deadly force and does 

not have a duty to retreat in any place he or she has the 

lawful right to be if either of the following applies:

(1) He or she reasonably believes that such force is 

necessary to prevent imminent death or great bodily 

harm to himself or herself or another.
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(2) Under the circumstances permitted pursuant to 

[N.C. Gen. Stat. §] 14-51.2.

N.C. Gen. Stat. § 14-51.3(a)(1)-(2).5 

“Both sections provide that individuals using force as described are immune 

from civil or criminal liability and that such individuals have no duty to retreat before 

using defensive force.” State v. Bass, 371 N.C. 535, 541, 819 S.E.2d 322, 325-26 (2018) 

(citations and internal footnote omitted). Accordingly, “wherever an individual is 

lawfully located . . . the individual may stand his ground and defend himself from 

attack when he reasonably believes such force is necessary to prevent imminent 

death or great bodily harm to himself or another.” Id. at 541, 819 S.E.2d at 326.

As under the common law, the right to use defensive force is not unlimited 

under N.C. Gen. Stat. §§ 14-51.2 and 14-51.3. Indeed, the statutory justification is 

not available to an individual who uses defensive force, and:

(2) Initially provokes the use of force against himself or 

herself. However, the person who initially provokes the 

use of force against himself or herself will be justified in 

using defensive force if either of the following occur:

a. The force used by the person who was provoked is so 

serious that the person using defensive force reasonably 

believes that he or she was in imminent danger of death 

or serious bodily harm, the person using defensive force 

had no reasonable means to retreat, and the use of force 

 

5 N.C. Gen. Stat. § 14-51.2, “Home, workplace, and motor vehicle protection; presumption of 

fear of death or serious bodily harm,” provides a rebuttable presumption in favor of the “lawful 

occupant of a home, motor vehicle, or workplace” who uses deadly defensive force under the 

circumstances set forth by subsection (b). “This presumption does not arise” under N.C. Gen. Stat. § 

14-51.3(a)(1). Lee, 370 N.C. at 675, 811 S.E.2d at 566.
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which is likely to cause death or serious bodily harm to 

the person who was provoked was the only way to 

escape the danger.

b. The person who used defensive force withdraws, in good 

faith, from physical contact with the person who was 

provoked, and indicates clearly that he or she desires to 

withdraw and terminate the use of force, but the person 

who was provoked continues or resumes the use of force.

N.C. Gen. Stat. § 14-51.4(2). 

In Holloman, our Supreme Court, construing N.C. Gen. Stat. § 14-51.4(2)(a) 

for the first time, considered “the extent, if any, to which North Carolina law allows 

an aggressor to regain the right to utilize defensive force based upon the nature and 

extent of the reaction that he or she provokes in the other party.” 369 N.C. at 626, 

799 S.E.2d at 831. Our Supreme Court first observed that, unlike the common-law 

rule, the plain language of subsection (2)(a) “does not, when read literally, appear to 

distinguish between situations in which the aggressor did or did not utilize deadly 

force.” Id. at 627, 799 S.E.2d at 832. 

Nevertheless, the Supreme Court declined to adopt the defendant’s proposed 

construction—“which would allow an aggressor to utilize defensive force in the event 

that his conduct caused the person provoked to lawfully utilize deadly force in his 

own defense”—concluding that such an interpretation “cannot be squared with the 

likely legislative intent motivating the enactment of” N.C. Gen. Stat. § 14-51.4(2)(a): 

Simply put, the adoption of [the] defendant’s construction 

of [N.C. Gen. Stat.] § 14-51.4(2)(a) would create a situation 
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in which the aggressor utilized deadly force in attacking 

the other party, the other party exercised his or her right 

to utilize deadly force in his or her own defense, and the 

initial aggressor then utilized deadly force in defense of 

himself or herself, thereby starting the self-defense merrygo-round all over again. We are unable to believe that the 

General Assembly intended to foster such a result, under 

which gun battles would effectively become legal, and hold 

that the provisions of [N.C. Gen. Stat.] § 14-51.4(2)(a) 

allowing an aggressor to regain the right to use defensive 

force under certain circumstances do not apply in 

situations in which the aggressor initially uses deadly force 

against the person provoked. 

Id. at 628, 799 S.E.2d at 833. 

In the instant case, the undisputed evidence—viewed in the light most 

favorable to the State—simply does not support that anyone but Jason was the 

aggressor in the altercation on 2 August 2015. That night, Tom and Sharon were 

staying in the guest bedroom in the basement, below the master bedroom occupied 

by Jason and Molly. Tom “had been asleep for a while” when he “was awakened from 

a sound sleep” by noises upstairs. Tom testified that he “heard thumping, like loud 

foot falls on the floor above [him] and . . . a scream and loud voices.” 

Tom surmised from these noises that “[t]here was an obvious disturbance going 

on above [him] somewhere in the house.” According to Tom, “it sounded bad . . . like 

a matter of urgency.” Tom testified that he instinctively “got out of bed, grabbed that 

baseball bat” off the floor beside his luggage, where he had left it earlier that evening, 

and—without getting dressed or putting on shoes—headed upstairs. Tom explained 
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that although he “did not know at that time what . . . was” causing the commotion 

upstairs, “[i]t seemed like a good idea” to bring the bat with him, because he “was 

going up to something that sounded confrontational and [he]’d rather have the 

baseball bat in [his] hand than not.”

Once he arrived upstairs, Tom determined that the noises were coming from 

inside of Jason and Molly’s bedroom. At trial, Tom described the scene he witnessed 

when he opened the door:

[TOM:] In front of me, I would say seven or eight feet in 

front of me, in front of the door as I opened the door, Jason 

had his hands around Molly’s neck. They were facing each 

other. She was a little to the right. He was a little to the 

left (indicating).

[DEFENSE COUNSEL:] Where were they in the bedroom?

A. They were, as I’m entering the door, they were to the 

right of the bed and maybe a step out from the bed closer 

to the bedroom, the exit from the bedroom.

Q. What happened next?

A. Um – I closed the door.

Q. Why?

A. I don’t know. I don’t. I did. I know that I did. And I 

said, “Let her go.” And he said, “I’m going to kill her.” And 

I said, “Let her go.” And he said, “I’m going to kill her.” 

And I said, “Let her go.” (Witness starting to cry.) And he 

said, “I’m going to kill her.” And I don’t know how many 

times that happened. But it happened several times. But 

I left something out. When I entered, he had his hands up 

around her neck, and as soon as I entered, he reversed 
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101

himself so that he had her neck in the crook of his right 

arm (demonstrating). And she was in front of him between 

me and him.

Q. What happened then?

A. And he was really angry.

[THE STATE:] Objection.

THE COURT: Overruled.

[TOM:] And I was really scared. And he took a step back 

toward the hallway that goes to the bathroom. And I was 

afraid that he would get to the bathroom and close the door 

and that would be the end of that. (Witness crying.) 

Because I would not be able to save her behind the 

bathroom door. So I took a step to my right and I hit him 

in the head, the back of the head with the baseball bat. 

That seemed like the most effective place to hit him. I 

didn’t want to hit Molly. So I tried to hit the back of the 

two of them glued together. His head was taller than hers 

and I know that I hit him that time. But it didn’t have any 

effect except seemingly further enraged him. He didn’t 

waiver [sic]. He didn’t go down.

[DEFENSE COUNSEL:] How tall are you?

A. About 5,11 [sic].

Q. How much do you weigh?

A. I weigh about 160 pounds.

Q. So after – what happened after you hit him the first 

time?

A. Then he did, as I feared, he continued to edge down 

toward into the hallway leading to the bathroom. And I 

didn’t have as much room in that hallway to maneuver as 
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102

I did in the bedroom. But I tried. And I tried to hit him as 

many times as I could to distract him because he now had 

Molly in a very tight chokehold with his forearm on this 

side (indicating) and his bicep on this side (demonstrating). 

She was no longer – she was no longer wiggling. She was 

just weight, being dragged back into the hallway. So I tried 

to hit him. I don’t know how effective those hits were 

because I didn’t have room to maneuver and to – but I tried. 

And I was determined that he was not going to close that 

bedroom door between me and her. And he did get to the 

bathroom but I was too close for him to close the door.

And we got into the bathroom and now I had room 

to maneuver again and I did what I did before in the 

bedroom, I took a step to the right, and was able to get the 

little angle on him behind him and I hit him. So I know of 

two times that I hit him in the back of the head and 

whatever happened in the hallway. (Long pause.) And 

again, it didn’t seem to have any effect. And so he changed 

tactics at that point. I mean, he had gone into the

bathroom. I had followed him into the bathroom and so 

now he started to push back down the hallway and I was 

able to get into the hallway before him, but he’s pushing 

me down the hallway – I mean, he’s not literally touching 

me. He’s pushing Molly down in front of him and he’s 

getting away. I really don’t think I hit him in that trip, in 

the return trip in the hallway, because he was initiating 

the action toward me and I was scared and – anyway, that’s 

what I remember.

In this contest, the parties were not equally positioned. Jason was 39 years 

old, 6’0” tall, and weighed 262 lbs. Tom was 65 years old, 5’11” tall, and weighed 160 

lbs. Molly was 31 years old, 5’6” tall, and weighed 110 lbs.

The State offered no evidence to refute Tom and Molly’s account of the events, 

nor does the disparity in the parties’ injuries, alone, tend to do so. Furthermore, in 
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103

focusing solely on the absence of obvious injuries to Defendants, the dissent and the 

State fail to acknowledge other evidence that tends to corroborate their version of 

events, including the long blonde hair that is visible in the palm of Jason’s right hand 

in State’s Ex. 172, a photograph taken at the scene of the incident and admitted at 

trial; and evidence that Molly was suffering from shock when first responders arrived 

to the scene. Deputy David Dillard testified that Molly was “visibly upset” and “very 

obviously in shock” when he interviewed her that night. Sergeant Barry Alphin 

testified that when he left the ambulance to check on Molly, he found her lying on the 

ground in the fetal position, covered with a blanket. At some point, he noticed that 

her throat was red.

Moreover, as to the aggressor determination, it is significant that Jason was 

the first to employ deadly force. Tom testified that from the moment he opened the 

bedroom door, “Jason had his hands around Molly’s neck,” and he was stating his 

intention to kill her. As Tom entered the room, Jason “reversed himself so that he 

had her neck in the crook of his right arm[,]” and he kept Molly in a “very tight 

chokehold” in front of him while the fight moved from room to room. At some point, 

Tom noticed that Molly “was no longer wiggling. She was just weight, being dragged 

back into the hallway.”

As a retired FBI agent, Tom knew the potential dangers of Jason’s “very tight 

chokehold.” Tom testified on cross-examination that he was “pretty familiar with this 
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104

chokehold[,]” which works to “subdue someone by restricting their blood flow,” due to 

its previous popularity with the Los Angeles Police Department. And Tom testified 

that Molly was subdued quickly: “Initially she was wiggling. When he put her into 

the chokehold, but as we got down and into the hallway she was pretty limp.”

All of the evidence supports that Jason was the initial aggressor in the affray, 

and the first person who used deadly force. In that Tom “did not aggressively and 

willingly enter into the fight without legal excuse or provocation[,]” Mize, 316 N.C. at

51, 340 S.E.2d at 441, the trial court erred by instructing the jury on the aggressor 

doctrine with respect to Tom’s claims of self-defense and defense of another. 

VI. Prejudice

Finally, we consider the extent to which Defendants were prejudiced by the 

errors analyzed above. Again, “[a]n error is not prejudicial unless there is a 

reasonable possibility that, had the error in question not been committed, a different 

result would have been reached at the trial.” Mason, 144 N.C. App. at 27, 550 S.E.2d 

at 16; see also N.C. Gen. Stat. § 15A-1443(a). As explained below, we agree with 

Defendants that “there is a reasonable possibility that, had the error[s] in question 

not been committed, a different result would have been reached at” trial. N.C. Gen. 

Stat. § 15A-1443(a).

First, as explained in Section IV(A)(1), the children’s interview statements 

contained significant material evidence that went to the heart of Defendants’ claims 
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105

of self-defense and defense of another. Sarah was a fact witness, as her nightmare 

was the event that precipitated Jason and Molly’s fight, which led to the fatal 

altercation. During the multi-disciplinary team meeting preceding the children’s 

medical evaluations at the Dragonfly House, Detectives Hanna and Riggs specifically 

requested that Reagan inquire about Sarah’s nightmare during the children’s 

forensic interviews.

Moreover, Jack’s Dragonfly House interview is the only evidence that could 

have explained the presence of the brick paver in the bedroom. This evidence was 

extremely important to the Defendants’ cases as well as the State’s case: for 

Defendants, Jack’s statement would have provided a reasonable explanation for the 

existence of an otherwise out-of-place brick paver in Molly and Jason’s bedroom. The 

State, on the other hand, benefited from the unexplained presence of one of two 

potential murder weapons in the master bedroom, and in fact, raised this very 

question during its opening statement, noting: “There is a brick paver in the master 

bedroom and there is nothing else having to do with landscaping or gardening or 

building walls inside that bedroom.”

Defendants requested that the trial court consider the State’s reference to the 

brick paver during its opening argument when the court eventually ruled upon 

Defendants’ motion to admit the children’s hearsay statements:

[DEFENSE COUNSEL:] A brief matter, nothing to rule on 

at this time. During [the State’s] opening statement he 
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106

made reference to the paving stone and indicated there 

were no gardening implements in the room. We made a 

pretrial motion to be able to get in the statements from 

Jack Corbett he made at the Dragonfly House. One of the 

things he talked about in that statement is how the paving 

stone got into the bedroom in the first place. I believe that 

would be relevant on that issue. And would ask at the time 

the Court consider that as well not for diagnosis or 

treatment in terms of the State is raising an issue and their 

investigation at least, you know, showed that Jack Corbett 

said how the paving stone got there. They left a question 

for the jury. I want the Court to take that into 

consideration when the time comes if we offer evidence and 

before that to the Court.

Following the trial court’s exclusion of the children’s hearsay statements, 

Defendants made a motion in limine to preclude the State from “arguing to the jury 

how did that paving stone get in there when they have evidence from an individual 

who is taken to the Dragonfly House and made that statement . . . to ask that evidence 

be suppressed, then argue to the contrary, I would say would be inappropriate[.]” The 

State assured the trial court and Defendants that it would avoid the issue during 

closing arguments. Nevertheless, the damage was already done. 

Included in the evidence Defendants submitted in support of their Motion for 

Appropriate Relief are numerous screenshots of Facebook comments showing 

individuals—including multiple members of the jury—discussing the case.6 

 

6 As discussed in Section II, the no-impeachment rule bars the admission of “evidence of any 

statement by [a juror] concerning a matter about which he would be precluded from testifying . . . for 

the[ ] purpose[ ]” of impeaching the jury’s verdict. N.C. Gen. Stat. § 8C-1, Rule 606(b); see also id. § 

15A-1240(a). For this reason, the evidence Defendants submitted in support of their Motion for 
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According to jury foreman Tom Aamland, the jurors “had many unanswered 

questions while deliberating[,]” but “ ‘how and why’ the paver made it into the home” 

was the “#1 question that was talked about when deliberations started[.]” (Emphasis 

added). Jack’s statement from his Dragonfly House interview would have answered 

this question, and its exclusion clearly prejudiced Defendants’ ability to present a 

meaningful defense. Cf. Lee, 370 N.C. at 676, 811 S.E.2d at 567 (“[T]he record reflects 

a reasonable possibility that, had the trial court given the required stand-yourground instruction, a different result would have been reached at trial. During 

closing argument the State contended that [the] defendant’s failure to retreat was 

culpable. As such, the omission of the stand-your-ground instruction permitted the 

jury to consider [the] defendant’s failure to retreat as evidence that his use of force 

was unnecessary, excessive, or unreasonable.” (internal citation omitted)).

Similarly, the children’s statements regarding Jason’s worsening issues with 

anger management, along with their statements concerning the relationship between 

Jason and Molly, would have corroborated and provided significant context for the 

written statement that Molly provided at the Davidson County Sheriff’s Office on 2 

August 2015. Moreover, the children’s statements would also have corroborated 

 

Appropriate Relief is inadmissible to impeach the verdicts rendered by the jury in this matter. 

However, there is no prohibition on this Court’s consideration of this evidence for the purposes of 

assessing whether Defendants suffered actual prejudice by the errors discussed herein, and 

determining the likelihood that, absent these errors, “a different result would have been reached at” 

trial. Id. § 15A-1443(a).
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testimony from Katie Wingate, nurse practitioner at Kernersville Primary Care, 

where both Molly and Jason were patients. Wingate testified that when Jason visited 

Kernersville Primary Care on 16 July 2015, approximately two weeks prior to his 

death, 

[h]e reported he had been feeling faint and dizzy, this 

started six months ago, was now occurring more 

frequently. Now occurring at least once a week and at 

random times. No relation to exercise or walking. He said 

he had been more stressed and angry lately for no reason. 

He had also not been taking his thyroid medication for six 

or seven weeks, had not had follow-up with his cardiologist 

in at least a year.

(Emphasis added). 

The State had just successfully moved to admit into evidence Jason’s medical 

records from his 16 July 2015 visit to Kernersville Primary Care when Wingate 

provided the testimony above. However, neither the State nor Defendants were 

aware that these records even existed until the morning before Wingate testified. 

Where the State opens the door by proffering medical records and a testifying witness 

to explain their contents, fundamental fairness demands that Defendants be 

permitted to offer evidence to corroborate that Jason had been “more stressed and 

angry lately for no reason.” The children’s interview statements would have served 

this purpose.

Defendants argue that, in addition to corroborating Jason’s medical records, 

the children’s statements also describe specific “instances of [Jason’s] irrational anger 
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109

toward [Molly] and themselves[,]” which “would have been admissible when offered 

to demonstrate [Jason’s] angry and violent nature,” and to establish Jason’s “role in 

the altercation as the aggressor.” However, this argument is foreclosed by our 

Supreme Court’s decision in State v. Bass, 371 N.C. 535, 819 S.E.2d 322 (2018), which 

was released during the parties’ briefing period to our Court. See Bass, 371 N.C. at 

544, 819 S.E.2d at 327 (“To say that a person is the aggressor on a specific occasion 

is not to say that he has a violent character: a generally peaceful person may 

experience a moment of violence, and a normally aggressive or violent person might 

refrain from violence on a specific occasion. . . . Accordingly, with regard to a claim of 

self-defense, the victim’s character may not be proved by evidence of specific acts.”

(emphasis added)). 

Nonetheless, Bass does not foreclose the admission of all evidence regarding a 

victim’s character for violence. Even where specific violent acts would be 

inadmissible, the victim’s character for violence may still be proved through evidence 

of his reputation in the community, or statements offered in the form of an opinion. 

See State v. Watson, 338 N.C. 168, 188, 449 S.E.2d 694, 706 (1994) (holding that, 

“[b]ecause the jury was instructed on self-defense and was required to determine who 

was the aggressor in the affray,” the trial court erred by excluding a defense witness 

who would have provided opinion testimony regarding the victim’s violent character), 

disavowed in part on other grounds by State v. Richardson, 341 N.C. 585, 461 S.E.2d 
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724, cert. denied, 514 U.S. 1071, 131 L. Ed. 2d 569 (1995); see also Bass, 371 N.C. at 

544, 819 S.E.2d at 328 (distinguishing Watson on the basis that “Watson dealt only 

with opinion evidence—not evidence of specific acts” and thus “it sheds little light on 

the issue presented” in Bass).

Assuming, arguendo, that the children’s statements regarding Molly and 

Jason’s relationship, as well as Jason’s “angry and violent nature,” might be 

admissible as opinion evidence, and not as evidence of specific violent acts committed 

by Jason against Molly, the record supports that there is a reasonable possibility that 

the exclusion of this evidence affected the jury’s verdicts. In support of their Motion 

for Appropriate Relief, Defendants included a news report that was released prior to 

televised coverage of the case on ABC News “20/20,” in which jurors challenged 

Molly’s claim, during her pretrial interview with 20/20, that she was a victim of abuse. 

As one juror explained, “The defense did not once suggest any of that[.] So we as 

jurors, or me as a juror, cannot take that into consideration because it was never 

presented as a possibility.” (Emphasis added). Aamland echoed this sentiment: “We 

had to go by what we heard[.]”

Furthermore, for the reasons explained in Section IV(B), James’s expert 

testimony on bloodstain pattern analysis failed to satisfy the reliability requirements

set forth under N.C. Gen. Stat. § 8C-1, Rule 702(a)(1)-(3), as interpreted by our 
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111

Supreme Court in the seminal case of State v. McGrady, 368 N.C. 880, 787 S.E.2d 1 

(2016). 

We emphasize that we do not hastily arrive at our conclusion on this issue:

that, not only did the trial court err by admitting James’s testimony regarding the 

untested stains on Tom’s boxer shorts and Molly’s pajama pants, but also, that it 

“appears reasonably possible that the jury would have reached a different verdict 

without the challenged evidence.” Mason, 144 N.C. App. at 28, 550 S.E.2d at 16.

Abuse of discretion is certainly a high bar to overcome, with the burden of 

demonstrating prejudice even more cumbersome. Here, however, James’s testimony 

and conclusions regarding the untested stains on Tom’s boxer shorts and Molly’s 

pajama pants were not based upon sufficient facts and data to reliably pass muster 

under N.C. Gen. Stat. § 8C-1, Rule 702(a)(1). Moreover, notwithstanding James’s 

unchallenged qualifications in the field of bloodstain pattern analysis, a careful 

review of his testimony raises serious questions concerning the extent to which he 

“applied his own methodology reliably in this case.” McGrady, 368 N.C. at 899, 787 

S.E.2d at 14.

Here, the erroneous admission of James’s testimony was significantly 

prejudicial to Defendants. This was the only evidence offered as direct proof that 

Defendants hit Jason in the head from above. James’s testimony thus bolstered the 

State’s case to show that Defendants administered blows while Jason was down on 
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112

the ground and defenseless. And yet, because James’s conclusions about the untested 

stains were supported by neither sufficient data nor reliable methodology, his 

testimony about the “physical characteristics” of the stains—including their “location, 

size, shape, and distribution”—could not have assisted the jury in rendering its 

verdicts, “because these matters were within the jurors’ common knowledge.” Id. at 

895, 787 S.E.2d at 12; see also id. (“The factors that [the defendant’s proposed expert 

witness] cited and relied on to conclude that [the] defendant reasonably responded to 

an imminent, deadly threat are the same kinds of things that lay jurors would be 

aware of, and would naturally consider, as they drew their own conclusions.”). 

Additionally, as explained in Section IV(C), Tom’s testimony regarding Molly’s 

statement “Don’t hurt my dad” was admissible and should not have been excluded. 

The trial court’s error in sustaining the State’s objection to this testimony was 

prejudicial. Tom’s testimony was directly relevant to the reasonableness of his belief 

that the use of deadly force was necessary to prevent imminent death or great bodily 

harm to himself or Molly—that is, whether his use of deadly force was lawful under 

the circumstances, the central issue of the case. Moreover, the trial court’s erroneous 

exclusion of this testimony made way for the State’s argument for jury instructions 

on the aggressor doctrine, contending that “at that point in time [Tom] assumed some 

degree of aggression after there was a pause when he was no longer under a 

continuous assault.”
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The trial court committed reversible error in Tom’s case by delivering 

unsupported jury instructions on the aggressor doctrine. Juarez, 369 N.C. at 358, 

794 S.E.2d at 300. This error alone entitles Tom to a new trial. However, the record 

evinces that the trial court’s error very likely prejudiced Molly, as well.

The trial court ruled, as a matter of law, that Molly was not the aggressor, but 

instructed the jury that it could find her guilty under an acting-in-concert theory of 

culpability. “We have long held that a jury is presumed to follow the instructions 

given to it by the trial court.” State v. Wiley, 355 N.C. 592, 637, 565 S.E.2d 22, 52 

(2002) (citation omitted), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). Here, 

however, the record clearly demonstrates that the jury did not follow the trial court’s 

instructions. In the Facebook comments proffered by Defendants in support of their 

Motion for Appropriate Relief, Aamland stated, “[W]e decided on 2nd degree for both, 

but feel Molly was the aggressor, and her dad wanted to take the heat for her actions... 

he admitted participating, so ‘in concert’ means equal responsibility to both.” 

(Emphasis added). Accordingly, while the trial court reversibly erred by delivering 

unsupported jury instructions on the aggressor doctrine in Tom’s case, whether due 

to confusion or some other reason, the record also clearly establishes that the jury did 

not follow the trial court’s instructions with regard to Molly.

For these reasons, we conclude and hold that Defendants satisfied their burden 

of demonstrating prejudice—that “there is a reasonable possibility that, had the 
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114

error[s] in question not been committed, a different result would have been reached 

at” trial. N.C. Gen. Stat. § 15A-1443(a). 

Specifically, Defendants have established a reasonable possibility that the jury 

might have reached a different result, but for (1) the erroneous exclusion of the 

children’s hearsay statements during their interviews conducted by Union County 

DSS personnel on 3 August 2015, and at the Dragonfly House Children’s Advocacy 

Center on 6 August 2015; (2) the improper admission of expert testimony regarding 

the untested stains on Tom’s boxer shorts and Molly’s pajama pants, which failed to 

satisfy N.C.R. Evid. 702(a)’s reliability requirements; and (3) the trial court’s error in 

sustaining the State’s motion to strike Tom’s testimony that he heard Molly scream, 

“Don’t hurt my dad.” In addition, the trial court committed reversible error in Tom’s 

case by delivering unsupported jury instructions on the aggressor doctrine. Although 

Tom, alone, is entitled to a new trial on this basis, for the reasons explained above,

the record indicates that this instructional error very likely confused the issues for 

the jury in Molly’s case as well.

Accordingly, we hold that both Defendants are entitled to a new trial in this 

matter. Moreover, because the issues discussed herein are dispositive of Defendants’ 

appeals, we need not and do not address the additional arguments raised in their

briefs. 

VII. Conclusion
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“The jury is the lie detector in the courtroom and is the only proper entity to 

perform the ultimate function of every trial—determination of the truth.” State v. 

Kim, 318 N.C. 614, 621, 350 S.E.2d 347, 351 (1986). The tragic and unusual 

circumstances of this case are a humble reminder of the importance of the jury’s vital 

role in our delicate system of justice. Due to the compounding evidentiary and 

instructional errors that occurred both before and throughout the three-week trial in 

this matter, Defendants were prevented from presenting a meaningful defense, or 

from receiving the full benefit of their claims of self-defense and defense of a family 

member. As a result, the jury was denied critical evidence and rendered incapable of 

performing its constitutional function. Defendants are therefore entitled to a new 

trial.

For the reasons stated herein, we affirm the trial court’s order denying

Defendants’ Motion for Appropriate Relief. However, due to the numerous preserved, 

prejudicial errors apparent within the record, we reverse the judgments entered upon 

Defendants’ convictions for second-degree murder and remand for a new trial.

NEW TRIAL.

Judge TYSON concurs.

Judge COLLINS concurs in part and dissents in part by separate opinion.
No. COA18-714 – State v. Corbett & Martens

COLLINS, Judge, concurring in part and dissenting in part.

I concur in the majority opinion that the trial court did not err by (1) denying 

Defendants’ request for an evidentiary hearing on their Motion for Appropriate Relief 

(“MAR”), (2) denying Defendants’ MAR, or (3) denying Defendants’ motions to dismiss 

for insufficient evidence. I respectfully dissent from the remainder of the majority 

opinion that leads to its conclusion that Defendants are entitled to a new trial.

I. Factual Background

Although the majority opinion includes a recitation of the facts, I include a 

recitation of the facts as well.

Jason was a native of the Republic of Ireland, where he originally lived with 

his first wife, Margaret, and their children, Sarah and Jack. Margaret died of an 

asthma attack in 2003. After Margaret’s death, Jason employed Molly as an au pair. 

After several weeks, Jason and Molly established a romantic relationship. In 2011, 

Jason, Molly, Sarah, and Jack (collectively, the “Corbetts”) moved to Davidson 

County, North Carolina. Jason and Molly got married that same year. 

Tom Martens’ testimony

On 1 August 2015, Tom and his wife Sharon, Molly’s mother, decided to visit 

the Corbetts. Tom, an attorney and retired FBI agent, packed a Little League 

baseball bat and a cut-down tennis racket for Jack. Tom and Sharon left their home 

in Knoxville, Tennessee and arrived at the Corbetts’ home at 8:30 pm. When they 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 2 -

arrived, Jason was sitting in a lawn chair in the driveway having a beer with his 

neighbor. Jason got up and greeted Tom and Sharon. 

Tom unpacked the car while Molly ordered pizza. Tom, Sharon, Jason, Molly, 

and Sarah had pizza while Jack was at a party. Jack arrived home around 11:00 pm. 

Tom did not give Jack the bat at that point because it was late and time for everyone 

to go to bed. Tom and Sharon retreated to the guest room in the basement, which is 

just below the bathroom that joins Jason and Molly’s master bedroom.

Tom testified, “I was awakened from a sound sleep, and I don’t know what time 

it was, but I had been asleep for a while. And I heard thumping, like loud foot falls 

on the floor above me and I heard a scream and loud voices. There was an obvious 

disturbance going on above me somewhere in the house.” Tom got out of bed, grabbed 

the baseball bat that was with his luggage on the floor beside his bed, and went 

upstairs. He opened the door to Jason and Molly’s bedroom and saw that “Jason had 

his hands around Molly’s neck.” Tom went inside the bedroom and closed the door. 

Tom repeatedly told Jason, “Let her go.” Jason repeatedly replied, “I’m going 

to kill her.” Tom testified, “I was really scared” and described how Jason, with Molly’s 

neck in the crook of his arm, took a step toward the hall that led to the bathroom. 

Fearing Jason would get to the bathroom and close the door, Tom testified, “I took a 

step to my right and I hit him in the head, the back of the head with the baseball bat.” 

But Jason “didn’t waiver. He didn’t go down.” Tom further described the altercation, 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

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admitting, “I tried to hit him as many times as I could to distract him because he now 

had Molly in a very tight chokehold with his forearm . . . .” 

Once they were in the bathroom, Tom angled himself behind Jason and hit 

Jason two more times in the head. Tom again stated this “didn’t seem to have any 

effect.” Jason then began pushing into the hallway while holding Molly in front of 

him. When they were back in the bedroom, Tom swung the bat again, but Jason 

caught the bat with his left hand and Molly was able to go free. At this point, both 

Tom and Jason had the bat. Jason “cock[ed] his hand,” “punche[d] out,” and shoved 

Tom across the bed. Tom ended up “on the floor with [his] back to him and face down 

on the carpet.” 

When Tom got up, he saw Jason with the bat and Molly by the nightstand. 

Tom decided to “rush” Jason and “try to get ahold of the bat.” When he did so, both 

he and Jason ended up with both hands on the bat. Tom testified that he tried to hit 

Jason with the end of the bat. In doing so, Jason “los[t] his grip,” and Tom gained 

control of the bat. 

Tom did not know how many times he hit Jason. Tom testified, “I hit him until 

he goes down. And then I step away. . . . I hit him until I thought that he could not 

kill me.” After he gathered his thoughts, he called 911. Tom told the 911 operator, 

“My, my, uh, daughter’s husband, uh, my son-in-law, uh, got in a fight with my 

daughter, I intervened, and I, I think, um, and, he’s in bad shape. We need help. . . . 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

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He, he’s bleeding all over, and I, I may have killed him.” While on the 911 call, Molly 

and Tom both tried to administer CPR, as guided by the operator. When law 

enforcement arrived, Molly and Tom were told to wait outside on the front porch.

On direct examination, Tom testified, “[Jason] wasn’t my favorite person. I 

didn’t like him. I’m sure I said disparaging things about him.” On cross-examination, 

Tom acknowledged that prior to marrying Molly, Jason had transferred a “sizeable 

amount” of money to America to purchase the Davidson County residence, such that 

there was no mortgage on the property. Additionally Jason had transferred 

$49,073.39 to Tom “for the marriage[.]” Tom was aware that Jason had a life 

insurance policy and that Molly was the beneficiary.

Barry Alphin’s testimony

Sergeant Barry Alphin, a paramedic with Davidson County Emergency 

Medical Services (“EMS”), received a call at 3:03 am on 2 August 2015 that someone 

was in cardiac arrest. Ten minutes later he arrived at the scene in an ambulance 

with his co-worker, David Bent. They had arrived at the scene before they received 

an update that the call had been changed from cardiac arrest to assault. Alphin went 

into the room and “saw blood all over the floor and walls.” He saw a lamp laying on 

the floor, and “there was a brick right there in front of it. I noticed there was a small 

ball bat leaning up against a dresser. . . . As we walked in, I saw [Jason] supine or 

feet laying out on his back with his head around the corner.” Molly and Tom were in 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 5 -

the room, and Molly was doing chest compressions on Jason. Paramedics took over 

the chest compressions; Molly and Tom stepped outside the door. At some point, 

Alphin noticed some redness on Molly’s throat or neck.

Alphin went to the ambulance and retrieved a back board. With the assistance 

of other rescue workers, he put Jason on the board and took him to the ambulance. 

He attempted to intubate Jason. Alphin testified, “I went to lift the chin. As I did, 

my left hand, all of my fingers went inside the skull. My right hand was just mushy. 

At that point I realized there was severe heavy trauma to the back of the head.” 

Alphin noted Jason’s “eye[] sockets had a lot of gel blood. His ear had a lot of gel.” 

He tried to clean Jason up to find the source of bleeding. He also noted dried blood 

on Jason’s cheek. At 3:24 am, Alphin concluded that life sustaining efforts were futile 

and stopped advanced life support. 

David Bent’s testimony

David Bent, also a paramedic with Davidson County EMS, arrived at the scene 

with Alphin and attempted to get into the master bedroom. They were not able to 

open the door completely because Jason was lying naked on the floor, partially 

blocking the door. Bent “observed dry blood on” Jason’s body. At some point, he came 

into contact with Molly and observed a light redness on the left side of her neck. She 

told him she had been choked. She also told him she felt okay and did not want to go 

to the hospital. 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

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Clayton Daggenhart and Rusty Ramsey’s testimony

Corporal Clayton Daggenhart with the Davidson County Sheriff’s Office 

received a call from the 911 center a little after 3:00 am on 2 August 2015. The call 

originally came in as a cardiac incident, but two minutes later was changed to an 

assault call. He arrived at the scene at 3:16 am; an ambulance was in the driveway. 

Daggenhart went directly inside the house and into the master bedroom. As he closed 

the door, he noted blood on the backside of it. A naked white male, who he later 

determined was Jason, was lying on his back next to what appeared to be puddles of 

congealing blood. Jason appeared to have a pool of blood around his left eye socket 

as well as blood on his chest. Daggenhart took some photographs of the scene, and 

then EMS personnel loaded Jason onto a portable back board and placed him on a 

stretcher to remove him from the residence. 

After Jason’s body was removed, Daggenhart began looking around the room. 

Daggenhart testified, 

I noted that there was blood that appeared to be dried or 

drying on the wall. There were several pools of blood next 

to where the body had been. There was blood on the wall 

past where the body had been. I noted more blood that was 

going into what seemed to be and was the master 

bathroom.

He also observed a “brick stone or paving stone and a baseball bat . . . [r]ight next to 

a dresser that’s just to the side of the master bedroom area that leads out to the foyer.” 

There were areas near the base of the door that were saturated with blood. 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 7 -

When Daggenhart exited the bedroom, Defendants were standing just outside 

the door. Daggenhart did not notice anything remarkable about either one, except 

that Molly had blood on the top of her head. Daggenhart asked them to exit the 

house. Daggenhart and Corporal Rusty Ramsey were directed to go retrieve the

children from their bedrooms. Daggenhart testified that Sarah was “asleep in bed 

undisturbed, wasn’t affected in any way.” Ramsey testified that when he knocked on 

Jack’s bedroom door, Jack was asleep. The officers woke the children up, carried 

them down the stairs, and left them with Sharon, who had come up from the 

basement. 

Amanda Hackworth’s testimony

Amanda Hackworth, also a paramedic with Davidson County EMS, was 

working with another paramedic, Carley Lane, when they received a cardiac arrest 

call a little after 3:00 am on 2 August 2015. When they arrived at the scene to assist, 

Jason was already being brought out of the house on the stretcher. Hackworth got 

into the back of the ambulance to assist. She was putting a lead on Jason to get a 

better cardiac read when she reached across his body and felt his torso was cool. She 

turned to Alphin and asked, “How long did you say they waited before they called 

911[?]” She said Alphin replied, “‘They said they called as soon as he went down.’” 

David Dillard’s testimony
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 8 -

Patrol Deputy David Dillard was called to the scene a little after 3:00 am. After 

taping the perimeter of the scene, he escorted Molly to his patrol car. She remained 

there for about an hour while he remained beside the car. He testified, “She was 

making crying noises but I didn’t see any visible tears. She was also rubbing her neck 

(demonstrating). I would say in a scrubbing motion-type thing. It wasn’t a constant. 

She would do it and stop and do it and then stop while continuing to make the crying 

noises. That was about everything she had done.” 

Frank Young’s testimony

Lieutenant Frank Young, a Crime Scene Investigations Supervisor, arrived at 

the scene at about 4:00 am. He went to the patrol car in which Molly was sitting “to 

photograph her for any possible injuries she had received.” Young testified, “as I was 

preparing [to take] the photographs, [Molly] continually tugged and pulled on her 

neck with her hand. I asked her to please stop doing that.” After several requests, 

she stopped. Young did not note any injuries on Molly’s person.

Young also took photographs inside the master bedroom. One photograph 

depicted a brick with hair on it. Young later photographed both Molly and Tom at 

the Sheriff’s Department. He did not note any injuries on either individual.

Molly’s written statement

Molly gave a written statement to law enforcement officers on 2 August 2015 

in which she stated the following:
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 9 -

My husband, Jason Corbett, was upset that he awoke and 

an argument ensued with him telling me to “shut up,” (etc.) 

and he applied pressure to my throat/neck and started 

choking me. At some point, I screamed as loud as possible. 

He covered my mouth and then started choking me again 

with his arm. My father, Tom Martens, came in the room 

and I cannot remember if he said something or just hit 

Jason to get him off me. Jason grabbed the bat from him 

and I tried to hit him with a brick (garden decor) I had on 

my nightstand. I do not remember clearly after that.

Dr. Craig Nelson’s testimony

Dr. Craig Nelson, Associate Chief Medical Examiner at the North Carolina 

Office of the Chief Medical Examiner, performed an autopsy on Jason’s body on 3 

August 2015. “The autopsy documented multiple blunt force injuries. These included 

ten different areas of impact on the head, at least two of which had features 

suggesting repeated blows indicating a minimum of 12 different blows to the head. 

Additionally, he had a few other injuries elsewhere on his body, the torso and 

extremities.” The bones in Jason’s nose were broken and there were “two large 

complex lacerations towards the back of the head” indicating repeated blows to those 

areas. Portions of Jason’s skull on both the left and right sides had fractures all the 

way around them, such that when the scalp was pulled back in the autopsy, those 

portions fell out of place. One laceration on the back of Jason’s head “ha[d] an 

appearance of a postmortem injury in that there[] [was] very little bleeding of that 

injury, suggesting it happened after the heart had stopped.” Nelson testified, “The 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 10 -

degree of skull fractures in this case are the types of injuries that we may see in falls 

from great heights or in car crashes under other circumstances.” 

Nelson further testified that an abrasion on the right side of Jason’s forehead 

had a sharp linear component, consistent with an object that had an edge, that he 

would not expect to see from a baseball bat. Jason had a contusion on the back of his 

left hand and some blunt force injuries on his right thigh. Jason’s blood alcohol level 

was .02% and he tested positive for a low level of Trazadone, an antidepressant 

medication that can have some sedative effects. Nelson determined the cause of 

death to be “blunt force head trauma.” 

Melanie Carson’s testimony

Melanie Carson, a forensic scientist with the North Carolina State Crime 

Laboratory in the Trace Evidence Unit, testified that one of two hairs recovered from 

the end of the baseball bat, as well as twelve of twenty-five hairs recovered from the 

brick, were microscopically consistent with a hair sample taken from Jason. 

Wendell Ivory’s testimony

Wendell Ivory, a forensic scientist with the North Carolina State Crime Lab, 

testified that the baseball bat, brick, Molly’s pajama top and bottom, Tom’s shirt, and 

Tom’s boxer shorts tested positive for the presence of human blood. Furthermore, 

DNA profiles taken from the tissue recovered from the brick, as well as tissue 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 11 -

recovered from Molly’s pajama top and bottom matched the DNA profile obtained 

from Jason. 

Stuart James’ testimony

Stuart James was accepted by the trial court as an expert in the field of 

bloodstain pattern analysis. James reviewed the photographs and videos taken at 

the scene, as well as the physical evidence collected by law enforcement, and prepared 

a written report on his findings and conclusions. Stuart testified regarding the blood 

stains on Tom’s boxer shorts as follows:

And my conclusions are that the spatters on the front of 

these boxer shorts were confirmed as impact spatters. . . . 

And this had me -- my conclusions then are these impact 

spatters are consistent with the wearer of these boxer 

shorts in proximity to the victim Jason Corbett when blows 

were struck to his head. The head being the source of the 

blood in this particular case.

. . . .

With respect to the small spatters on the front underside 

of the left leg of the shorts, these were consistent with the 

wearer of the shorts close to and above the source of the 

spattered blood. To what extent, I can’t really say. In order 

for the stains to get to that location on the inside of the leg, 

they would have to be traveling, you know, at least 

somewhat upward in order to do that. My conclusion there 

was the source of the impact spatters is most likely the 

head of Jason Corbett while it was close to the floor in the 

bedroom.

In his report, he concluded, inter alia:

 . . . . Multiple impacts to the source of blood occurred as the 

source of blood was descending to the floor. This resulted 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 12 -

in the large accumulation of bloodshed in this area where 

the body of Jason Paul Corbett was discovered on the 

floor. . . . 

. . . .

 The Louisville Slugger baseball bat with blood transfer and 

hair fragments is consistent with having impacting [sic] 

the head of Jason Paul Corbett.

 The paving brick with blood transfer and hair fragments is 

consistent with having impacting [sic] the head of Jason 

Paul Corbett. The presence of transfer stains on all 

surfaces of the brick is not consistent with a single impact 

to his head.

Joann Lowry’s testimony

Joann Lowry, one of Tom’s co-workers, testified that during a conversation she 

had with Tom in 2015, Tom said, referring to Jason, “that son-in-law, I hate him.” 

II. Issues

After considering the parties’ arguments and my partial concurrence in the 

majority opinion, I consolidate and structure my discussion of the issues as follows: 

whether the trial court erred by (1) excluding from evidence certain interview 

statements made by Sarah and Jack; (2) instructing the jury on the aggressor 

doctrine as to Tom’s claims of self-defense and defense-of-others; (3) allowing into 

evidence certain testimony by the State’s blood spatter expert; (4) excluding from 

evidence Tom’s testimony about a statement made by Michael Fitzpatrick; (5) 

striking Tom’s testimony about a statement made by Molly during the altercation; (6) 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 13 -

instructing the jury on the criminal liability theory of concerted action as to Molly; 

and (7) denying Tom a fair trial based on cumulative error. 

The majority opinion addresses issues 1, 2, 3, 5, and 7, but does not address 

issues 4 and 6.

III. Discussion

1. Exclusion of the Children’s Statements

Defendants contend that the trial court erred by excluding from evidence 

certain statements made by Sarah and Jack as inadmissible hearsay. 

Before trial, Defendants moved to admit statements made by the children 

during 3 August 2015 interviews with a Union County Department of Social Services 

(“DSS”) social worker7 (“DSS Interviews”) and 6 August 2015 interviews with a child 

forensic interviewer at the Dragonfly House (“Dragonfly House Interviews”), a child 

advocacy center, under several hearsay exceptions. The statements concerned the 

events surrounding Jason’s killing as well as prior instances of Jason’s violent 

conduct. Defendants also moved to determine the unavailability of Sarah and Jack. 

The State moved to exclude the statements. 

The trial court conducted an evidentiary hearing on the motion during a special 

session of superior court on 8 and 9 June 2017, and continued to consider the 

 

7 Defendants also moved to admit statements made by the children during 13 August 2015 

interviews with a Davidson County DSS social worker. Defendants have made no argument on appeal 

that those statements were erroneously excluded and thus the issue is deemed abandoned. N.C. R. 

App. P. 28(a). 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 14 -

admissibility of the proffered statements during the presentation of the evidence at 

trial. The trial court excluded the children’s statements from evidence and entered a 

written order memorializing its ruling. The trial court found Sarah and Jack 

unavailable in that they were “beyond the jurisdiction and process” of the court. The 

trial court concluded the children’s statements were inadmissible under Rule 803(4)’s 

medical diagnosis or treatment exception because “they were not intended to obtain 

a medical diagnosis or treatment” and “they were not pertinent to any medical 

diagnosis or treatment.” The trial court further concluded the children’s statements 

were inadmissible under Rule 803(24)’s residual exception because they “do not have 

circumstantial guarantees of trustworthiness.” 

A. Rule 803(4)’s Medical Treatment or Diagnosis Exception

Defendants first contend that statements made by Sarah and Jack during their 

Dragonfly House Interviews were admissible under Rule 803(4)’s medical treatment 

or diagnosis hearsay exception.8 

We review de novo a trial court’s determination of the admissibility of an outof-court statement pursuant to Rule 803(4). State v. Norman, 196 N.C. App. 779, 783, 

675 S.E.2d 395, 399 (2009). 

 

8 Defendants make no argument on appeal that the trial court erred in excluding under this 

exception statements made by the children at the DSS interviews; such argument is thus deemed 

abandoned. N.C. R. App. P. 28(a).
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 15 -

Rule 803(4) excepts from the general rule against hearsay9

[s]tatements made for purposes of medical diagnosis or 

treatment and describing medical history, or past or 

present symptoms, pain, or sensations, or the inception or 

general character of the cause or external source thereof 

insofar as reasonably pertinent to diagnosis or treatment.

Id. § 8C-1, Rule 803(4) (2017). “This exception to the hearsay doctrine was created 

because of a ‘patient’s strong motivation to be truthful’ when making statements for 

the purposes of medical diagnosis or treatment.” State v. Lewis, 172 N.C. App. 97, 

103, 616 S.E.2d 1, 4-5 (2005) (citing N.C. Gen. Stat. § 8C-1, Rule 803(4) official 

commentary (2003)).

In State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000), our North Carolina 

Supreme Court created the following two-part inquiry to determine if statements are 

admissible under Rule 803(4): “(1) whether the declarant’s statements were made for 

purposes of medical diagnosis or treatment; and (2) whether the declarant’s 

statements were reasonably pertinent to diagnosis or treatment.” Id. at 284, 523 

S.E.2d at 667. “The first part of the inquiry seeks to determine the child’s purpose in 

making the statement, not the interviewer’s purpose in conducting the interview.” 

Lewis, 172 N.C. App. at 103, 616 S.E.2d at 5 (citing Hinnant, 351 N.C. at 289, 523 

S.E.2d at 671). 

 

9

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial 

or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 

801(c) (2017). “Hearsay is not admissible except as provided by statute or by” the Rules of Evidence.” 

Id. § 8C-1, Rule 802 (2017). There is no dispute that the statements at issue are hearsay.
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 16 -

“[T]he proponent of Rule 803(4) testimony must affirmatively establish that 

the declarant had the requisite intent by demonstrating that the declarant made the 

statements understanding that they would lead to medical diagnosis or treatment.” 

Hinnant, 351 N.C. at 287, 523 S.E.2d at 669. In determining whether a child’s 

statements are admissible under this exception, “the trial court should consider all 

objective circumstances of record surrounding declarant’s statements in determining 

whether he or she possessed the requisite intent under Rule 803(4).” Id. at 288, 523 

S.E.2d at 670.

In Hinnant, statements made by a five-year-old alleged victim of sexual abuse 

were not admissible under Rule 803(4) where “there [was] no affirmative record 

evidence indicating that [the child’s] statements were medically motivated and, 

therefore, inherently reliable.” Id. at 290, 523 S.E.2d at 671. The child was 

interviewed by a clinical psychologist two weeks after an initial medical examination, 

but just prior to a follow-up examination by a medical doctor. The record did not 

“disclose that [the psychologist] or anyone else explained to [the child] the medical 

purpose of the interview.” Id. at 289-90, 523 S.E.2d at 671. “In addition, the 

interview was not conducted in a medical environment. Instead, it was held in what 

[the psychologist] described at trial as a ‘child-friendly’ room, one in which all of the 

furniture was child-sized.” Id. at 290, 523 S.E.2d at 671. “In [the Court’s] view, such 

a setting did not reinforce to [the child] her need to provide truthful information.” Id. 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 17 -

Thus, the Supreme Court could not conclude that the child understood that the 

psychologist “was conducting the interview in order to provide medical diagnosis or 

treatment.” Id. at 289, 523 S.E.2d at 671. Because the record failed to demonstrate 

that the child possessed the requisite intent when speaking with the psychologist, the 

child’s statements “were not made for purposes of medical diagnosis or treatment.” 

Id. at 290, 523 S.E.2d at 671. The trial court thus erred in admitting the statements 

under Rule 803(4). Id. at 290-91, 523 S.E.2d at 671.

In this case, Brandi Reagan, Executive Director of the Dragonfly House 

Children’s Advocacy Center and certified child forensic interviewer, conducted 

interviews with Sarah and Jack. At trial, Reagan explained that when a child arrives 

at the Dragonfly House for an appointment, the child is met by a child advocate who 

“talks with th[e] nonoffending caregiver and the child about . . . people they are going 

to meet, every service they are going to receive[,] and what would happen at the end 

of the appointment.” The child advocate tells the caregiver and the child “that they 

are there to receive a forensic interview and a medical exam. . . . [Y]ou are going to 

receive an interview and you will do these things in the interview; you will receive a 

medical exam and do these things in the medical exam.” 

Heydy Day, the child advocate in this case, testified, “I start off talking to the 

child and the caregiver saying, ‘you will be talking with one of my friends today,’ 

whether that’s our interviewer Kim or interviewer Brandi, you will be talking to that 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 18 -

lady.” Day testified that she would tell the children that cameras would “record what 

you and her talk about because this is really important. This way I don’t have to talk 

to all of these different people that you don’t know.” She further testified that she 

would tell the children that while they were talking with her friend, their caregiver 

would be talking to the doctor. Finally, she testified that she would tell the children, 

“Once you finish talking with Miss Kim or Miss Brandi and the doctor finishes talking 

with the caregiver, then the doctor will call you back to do a head to toe check-up of 

you.” 

Reagan testified that the Dragonfly House is housed in an old home and the 

forensic interviews took place in one of the bedrooms that was designed and decorated 

to be a “child-friendly” interview room. The interview room was separate from the 

medical examination room, but in the same facility. Sarah and Jack were not 

introduced to the physician or taken to a medical examination room until after they 

had completed their forensic interviews with Reagan. 

At the beginning of the interview, Reagan introduced herself to Sarah in the 

following manner, “My name is Brandi, and it is my job to talk to you today, okay?” 

In response to Reagan’s specific inquiry, “Tell me why you’re here today[,]” Sarah 

responded, “Because my dad died.” 

Similarly, Reagan introduced herself to Jack in the following manner, “And 

Jack, my name is Brandi. And it’s my job to talk to you today.” In response to 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 19 -

Reagan’s specific inquiry, “Tell me why you’re here[,]” Jack responded, “Um, my dad 

died, and people are trying – my aunt and uncle from my dad’s side are trying to take 

away – take me away from my mom. And – that’s why I’m here. My mom’s trying to 

get custody over us.” Toward the end of the interview, Reagan asked Jack, “And since 

you found out you were coming here, um, what has been in your mind?” Jack 

responded, “I was nervous at first, but then – and then my grandma and mom said 

everything’s going to be fine. You’re just going to ask me some questions, and they 

wanted me to tell the truth.” Reagan then asked, “What do you want to happen now?” 

Jack responded, “Um, to be with my mom.” 

The objective circumstances of record surrounding each child’s interview do not 

indicate that Sarah or Jack understood that the purpose of the interview was to gain 

information from them for their medical diagnosis or treatment. First, Sarah, almost 

8, and Jack, almost 11, were both old enough to understand the purpose of the 

interview, and they specifically indicated that they understood the purpose of the 

interview was to talk about their dad dying and, in Jack’s case, to help his Mom get 

custody of Sarah and him. Cf. Lewis, 172 N.C. App. at 104, 616 S.E.2d at 5 (children 

aged 8 and 9 “were old enough to understand the interviews had a medical purpose, 

and they indicated as such” by “sign[ing] forms stating they understood that the 

registered nurse would share their statements with a medical doctor”). Recognizing 

the difficulty of determining whether a declarant understood the purpose of his or her 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 20 -

statements, courts have attempted to infer a declarant’s understanding from the 

surrounding circumstances. Here, however, no such inference is necessary as Sarah 

and Jack specifically articulated their understanding of the purpose of the interviews, 

which was something other than medical diagnosis and treatment. This record 

evidence alone leads to a conclusion that the children’s statements were not medically 

motivated and, therefore, not inherently reliable.

The lack of inherent reliability in Sarah and Jack’s statements is further 

demonstrated by additional surrounding circumstances. As in Hinnant, the 

interviews took place in a “child-friendly” room, not a medical examination room. 

Moreover, neither Reagan, a certified child forensic interviewer, nor Day, a child 

advocate, was a medical professional, and neither explained to Sarah or Jack a 

medical purpose for the interview or explained that their discussion would be shared 

with a doctor. To the contrary, Day explained that their caregiver would talk to the 

doctor while they were being interviewed and that after their interview they would 

receive a medical examination by a doctor; Reagan explained to each child that during 

their interview it was simply her job to talk to them. Compare Hinnant, 351 N.C. at 

289-90, 523 S.E.2d at 671 (the Court could not conclude that the child understood the 

interviews were conducted in order to provide medical diagnosis or treatment where 

the record did not “disclose that [the psychologist] or anyone else explained to [the 

child] the medical purpose of the interview”) with Lewis, 172 N.C. App. at 103-04, 616 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 21 -

S.E.2d at 5 (The record indicated that both children had the requisite intent to make 

their statements for a medical purpose where they “were both interviewed by a 

registered nurse, at least one of whom was wearing a nurse’s uniform. . . . Both 

children signed forms stating they understood that the registered nurse would share 

their statements with a medical doctor. Both nurses testified that they also explained 

to the children their discussions would be shared with a doctor, who would then 

perform a medical examination.”).

Accordingly, Defendants failed to affirmatively establish that Sarah or Jack 

had the requisite intent to make statements during the forensic interview for 

purposes of obtaining medical diagnoses or treatment. Thus, the trial court properly 

concluded Sarah and Jack’s statements made during the Dragonfly House Interviews 

were inadmissible under Rule 803(4)’s medical treatment or diagnosis exception. In 

light of this conclusion, I need not analyze whether either of the children’s statements 

“were reasonably pertinent to diagnosis or treatment.” Hinnant, 351 N.C. at 284, 523 

S.E.2d at 667.

B. Rule 803(24)’s Residual Exception

Defendants next contend that the trial court abused its discretion by excluding 

the children’s statements made during their DSS Interviews and Dragonfly House 

Interviews because the trial court improperly concluded those statements lacked 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 22 -

sufficient guarantees of trustworthiness to be admissible under Rule 803(24)’s 

residual exception.

“[A]dmissibility of hearsay statements pursuant to the 803(24) residual 

exception is within the sound discretion of the trial court.” State v. Smith, 315 N.C. 

76, 97, 337 S.E.2d 833, 847 (1985). Thus, a trial court’s decision to admit or deny the 

admission of evidence under Rule 803(24) may be disturbed on appeal only where an 

abuse of such discretion is shown. See id. An abuse of discretion warranting reversal 

results only where the trial court’s ruling is “manifestly unsupported by reason or is 

so arbitrary that it could not have been the result of a reasoned decision.” State v. 

Rollins, 224 N.C. App. 197, 199, 734 S.E.2d 634, 635 (2012) (quotation marks and 

citation omitted). 

North Carolina Rule of Evidence 803(24) provides that the following is not 

excluded by the rule against hearsay:

A statement not specifically covered by any of the foregoing 

exceptions but having equivalent circumstantial 

guarantees of trustworthiness, if the court determines that 

(A) the statement is offered as evidence of a material fact; 

(B) the statement is more probative on the point for which 

it is offered than any other evidence which the proponent 

can procure through reasonable efforts; and (C) the general 

purposes of these rules and the interests of justice will best 

be served by admission of the statement into evidence. 

N.C. Gen. Stat. § 8C-1, Rule 803(24) (2017). “Because of the residual nature of the 

Rule 803(24) hearsay exception and the Commentary’s warning that ‘[t]his exception 

does not contemplate an unfettered exercise of judicial discretion,’ evidence proffered 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 23 -

for admission pursuant to . . . Rule 803(24) . . . must be carefully scrutinized by the 

trial judge within the framework of the rule’s requirements.” Smith, 315 N.C. at 91-

92, 337 S.E.2d at 844. Thus, prior to admitting or denying hearsay evidence proffered 

under of the residual hearsay exception, the trial court must determine the following:

(1) whether proper notice has been given, (2) whether the 

hearsay is not specifically covered elsewhere, (3) whether 

the statement is trustworthy, (4) whether the statement is 

material, (5) whether the statement is more probative on 

the issue than any other evidence which the proponent can 

procure through reasonable efforts, and (6) whether the 

interests of justice will be best served by admission.

State v. Valentine, 357 N.C. 512, 518, 591 S.E.2d 846, 852 (2003) (citing Smith, 315 

N.C. at 91-98, 337 S.E.2d at 844-48).

Under the third part of this six-part test, the trial court must determine 

“whether the statement is trustworthy.” Id.; see N.C. Gen. Stat. § 8C-1, Rule 803(24) 

(proffered hearsay statement must contain “circumstantial guarantees of 

trustworthiness” equivalent to those underpinning the remaining exceptions 

enumerated in Rule 803). “This threshold determination has been called ‘the most 

significant requirement’ of admissibility under Rule 803(24).” Smith, 315 N.C. at 93, 

337 S.E.2d at 845. 

In weighing the “circumstantial guarantees of trustworthiness” of a hearsay 

statement for purposes of Rule 803(24), the trial court must consider “(1) assurances 

of the declarant’s personal knowledge of the underlying events, (2) the declarant’s 

motivation to speak the truth or otherwise, (3) whether the declarant has ever 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 24 -

recanted the statement, and (4) the practical availability of the declarant at trial for 

meaningful cross-examination.” State v. Triplett, 316 N.C. 1, 10-11, 340 S.E.2d 736, 

742 (1986) (citing Smith, 315 N.C. 76, 337 S.E.2d 833). “Also pertinent to this inquiry 

are factors such as the nature and character of the statement and the relationship of 

the parties.” Triplett, 316 N.C. at 11, 340 S.E.2d at 742 (citation omitted).

None of these factors, alone or in combination, may 

conclusively establish or discount the statement’s 

“circumstantial guarantees of trustworthiness.” The trial 

judge should focus upon the factors that bear on the 

declarant at the time of making the out-of-court statement 

and should keep in mind that the peculiar factual context 

within which the statement was made will determine its 

trustworthiness.

Smith, 315 N.C. at 94, 337 S.E.2d at 845. “[I]f the trial judge examines the 

circumstances and determines that the proffered testimony does not meet the 

trustworthiness requirement, his inquiry must cease upon his entry into the record 

of his findings and conclusions, and the testimony may not be admitted pursuant to 

Rule 803(24).” Id. 

“When ruling on an issue involving the trustworthiness of a hearsay 

statement, a trial court must make findings of fact and conclusions of law on the 

record.” State v. Sargeant, 365 N.C. 58, 65, 707 S.E.2d 192, 196 (2011) (citation 

omitted). “We are bound by findings of fact supported by competent evidence.” State 

v. Brown, 339 N.C. 426, 438, 451 S.E.2d 181, 189 (1994) (citations omitted). “This 

holds true even if evidence exists ‘from which a different conclusion could have been 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 25 -

reached.’” Brown, 339 N.C. at 438, 451 S.E.2d at 189 (quoting State v. Johnson, 322 

N.C. 288, 293, 367 S.E.2d 660, 663 (1988)). 

On appeal, Defendants challenge the evidentiary sufficiency underlying the 

trial court’s factual findings supporting its conclusion that “[t]he proffered statements 

do not have circumstantial guarantees of trustworthiness.” I address each challenged 

finding in turn.

a. Factual Findings nos. 15 & 20

Factual findings 15 and 20, which address the trial court’s consideration of 

“assurances of the [children’s] personal knowledge of the underlying events,” Triplett, 

316 N.C. at 10, 340 S.E.2d at 742, state as follows: 

15. The children’s statements did not describe actual 

knowledge of the events surrounding the homicide of Jason 

Corbett. Jack identified the source of the information in 

his statements by saying “my mom told me” and “she 

(defendant Molly Corbett) told us.” Sarah similarly 

described the source of her knowledge, saying the her 

grandmother “told [me] first and then her mother [told 

me].” When speaking of her “grandmother,” Sarah was 

referring to the mother of defendant Molly Corbett and the 

wife of defendant Thomas Martens.

. . . . 

20. The statements of the children which the defense 

proffers were not made out of the personal knowledge of 

the declarant children but are instead double hearsay 

declarations of the defendant Molly Corbett and her 

mother.

These findings of fact are supported by the narrative of the DSS Interviews 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 26 -

and the transcript of the Dragonfly House Interviews. The DSS Interview narrative 

notes, “Sarah states her father screams and yells and states when her mom and dad 

goes into the room her dad hurts her mom. She stated her mom told her.” The 

narrative also notes, “Sarah stated her mom told her when she was about six or seven 

that her dad hurt her mom.” 

In Reagan’s Dragonfly House Interview with Sarah, Reagan told Sarah, “I 

want you to think about that day and tell me as much as you can possibly remember 

about that day when your dad died.” Sarah responded,

And then so in the nighttime at night, I was sleeping 

normally, and then this guy came upstairs I didn’t know 

who it was. It was actually an officer. And me, my 

grandma and my brother were shut downstairs. 

Later on, Sarah explained that on the night of the altercation, she fell asleep 

on the couch. Then, “my mom brought me up [to bed] – either my mom or my dad, I 

don’t know.” The following exchange then took place:

[Reagan]: All right. So then the next thing you told me 

was that you were sleeping, and the next thing you know, 

a guy came into the room, and he was an officer, and it was 

about 4 a.m. 

[Sarah]: Um-hmm. Yeah, and all I knew - at first I thought 

he was my grandpa, and then I thought it was my bald -

but I didn’t have a bald grandpa, but I thought my grandpa 

got bald for some reason. And then I knew it was an officer.

Reagan questioned Sarah about any violence she had witnessed between Molly 

and Jason prior to the evening of Jason’s death. Sarah stated that Jason would hurt 

Molly. When asked if Sarah saw Jason hurt Molly, Sarah said, “No, not really ever, 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 27 -

but one time I saw him step on her foot.” Reagan followed up by asking, “So when 

you said that he would fight with her and he would hurt her, you said you didn’t really 

see it, how would you know about it?” Sarah responded, “Because, um, my mom told 

me.” 

When Sarah was explaining how she knew what transpired during the fatal 

altercation, she said, “my grandma told me at first, because she said – she said, like 

– she said that, like, um, they were having a fight, and then grandpa went upstairs.” 

Reagan then asked, “At any time during the night, did you wake up or hear anything 

that was going on that night?” Sarah responded, “No. I don’t know what happened 

because I had – I was just being a hard sleeper that night.” 

Later in the interview, the following exchange took place:

[Reagan]: Okay. What would happen when you do wake up 

during the night?

[Sarah]: I would go downstairs because I usually had a 

nightmare. But I think what caused my dad being really 

mad that night was because, um, my mom kept on coming 

upstairs because I - like I have fairies on my bed, and I 

really get scared of those things, because they like look like 

spiders and lizards on my bed. So that’s why my mom had 

to keep on coming up. I couldn’t fall asleep until my mom 

put another sheet on my bed, and then my dad got mad.

[Reagan]: Okay. So you told me that you had fallen asleep 

downstairs and someone carried you upstairs. Did you 

wake up at any point after that?

[Sarah]: Nope.
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 28 -

[Reagan]: Okay. So you said your mom had to put another 

sheet on. How did you know that?

[Sarah]: Because before I went to sleep, she - because I 

woke up, like, in the middle – like not in the middle, but 

like – I’m sorry I said that I didn’t wake up.

In Reagan’s interview with Jack, Reagan asked him, “How did your dad die?” 

Jack responded:

Okay. Well, my sister had a nightmare about insect 

crawling – she had fairy blankets and insects all over her 

bed. That was a nightmare, though. And my dad got very 

mad, and he was screaming at our mom, and my mom 

screamed, and my grandpa came up and started to hit him 

with a bat. And then my dad grabbed hold of the bat –

grabbed – held the bat and hit my grandpa with the bat, 

until my mom put a – put – we were going to paint a brick 

that was in there, like a cinder block, and it hit his temple, 

right here, and he died.

When Reagan followed up by asking, “Um, now you said your sister had a nightmare. 

How did you know that?” Jack responded, “My parents – my mom told me.” When 

asked on several occasions to recount details about Jason’s alleged prior behavior, 

Jack could not remember details, admitted he “[didn’t] actually remember[,]” or 

stated that he knew about an event because his mom or grandma told him. At the 

end of the interview, Reagan asked, “And just to make sure I understand, how did 

you find out that your mom hit [your dad] with a brick and your grandpa hit him with 

a bat?” Jack responded, “She told me.”

These exchanges provide competent evidence to support the factual findings 

that the children’s “statements did not describe actual knowledge of the events 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 29 -

surrounding the homicide of Jason” and “were not made out of the personal 

knowledge of the declarant children but are instead double hearsay declarations of 

the defendant Molly Corbett and her mother.” 

b. Factual Finding no. 21 

Factual finding 21, which addresses the trial court’s consideration of “the 

[children’s] motivation to speak the truth or otherwise,” Triplett, 316 N.C. at 10-11, 

340 S.E.2d at 742, states as follows:

21. These same statements were not made at a time when 

the children were motivated to speak the truth but were

rather motivated to affect future custody arrangements -

specifically the children feared that they were going to be 

“taken away from their mother” and removed to another 

country by their father’s relatives.

The Dragonfly House Interviews were set up on 3 August—the same day the 

DSS Interviews took place—by the Davidson County DSS and Child Protective 

Services. Molly was not permitted to be present at the Dragonfly House Interviews, 

but she signed a consent form allowing the interviews to be conducted. Between 3 

and 6 August, Sarah and Jack stayed in Molly’s brother’s home in Union County with 

their grandmother, Sharon—Molly’s mother and Tom’s wife. During that time, Molly 

spent time with the children while actively pursuing custody of them—filing petitions 

for guardianship and stepparent adoption on 4 August, and obtaining an ex parte

temporary custody order on 5 August based on her allegation that Jason’s sister was 

coming to the United States to take the children back to Ireland with her. 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 30 -

On the morning of 6 August, a funeral service was held for Jason. The children 

attended the service with Molly and Sharon. Immediately following the service, 

Sharon drove Sarah and Jack to the interview at the Dragonfly House. Reagan was 

apparently unaware that Jason’s funeral service had been held that morning until 

Jack told her as much near the end of his interview.

Sarah indicated to Reagan that she had “heard people talk about my aunt 

trying to come get us, trying to come get me and my brother. . . . And that’s why at 

the funeral, I had to (indiscernible) my mother – my mom’s hand the whole time.” 

Reagan clarified, “You had to hold your mom’s hand the whole time?” Sarah 

responded, “Yes.” 

Reagan asked Jack, “And you said that your aunt and uncle want custody of 

you. How did you learn that?” Jack replied, “My mom and my grandma told me.” 

Reagan asked, “What did they say?” Jack responded, “They said, Jack, at the service 

they’re going to try to take you away. They’re trying to get you and Sarah and trying 

to get all of your dad’s stuff and bring him back to Ireland for a funeral.” 

The unique circumstances under which these interviews took place fully 

support the trial court’s finding that Sarah and Jack’s statements “were not made at 

a time when [they] were motivated to speak the truth but were rather motivated to 

affect future custody arrangements” in that “the children feared that they were going 

to be ‘taken away from their mother’ and removed to another country by their father’s 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 31 -

relatives.” 

c. Factual Finding no. 22 

Factual finding 22, which addresses the trial court’s consideration of whether 

the children ever recanted the statements, Triplett, 316 N.C. at 11, 340 S.E.2d at 742,

states as follows:

22. The statements of the children that are offered by the 

defense as pertinent to the relationship between Molly 

Corbett and Jason Corbett have been specifically recanted. 

Sarah Corbett . . . recanted her statements in diary entries 

made after her return to Ireland. Jack Corbett recanted 

his statements in diary entries and during a recorded 

interview with members of the District Attorney’s Office.

To undermine the trustworthiness of the statements made by Sarah and Jack, 

the State proffered a 27 May 2016 videotaped Skype interview of Jack that occurred 

in the home of Tracy and David Lynch10 in Ireland and was conducted by a Davidson 

County District Attorney, as well as copies of journal entries allegedly written by 

Sarah and Jack dating from January to March 2017. 

During Jack’s videotaped Skype interview, he stated that Molly told Sarah and 

him what to say during their forensic interviews while Molly and their grandmother 

were driving the children to the Dragonfly House on 6 August 2015. Jack stated that 

Molly told them what happened during the fatal altercation, about Jason choking her 

and Tom coming upstairs to defend her with a bat, and “to tell the DA.” Jack also 

 

10 Tracy Lynch, Jason’s sister, and her husband David are Sarah and Jack’s aunt and uncle, 

and were awarded custody of the children after Jason’s death.
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 32 -

stated that Molly was “making up . . . stories about [Jason], saying that he was 

abusive, and she started saying if you don’t lie [she would] never see [us] again.” Jack 

further explained that Molly “was telling [Sarah and him] to say that [Jason] was 

abusive and saying that he was very mean to Molly.” Jack stated, “I didn’t tell the 

truth at Dragonfly. I didn’t tell the truth [during the DSS Interview].” 

Sarah’s diary entries include statements indicating that Molly had told Jack 

and her to say that Jason hit and yelled at Molly; that Molly would punch herself; 

that Molly told her that Jason had killed Sarah’s mom by putting a pillow over her 

mouth; and that Molly punched Jack. To the extent that Sarah had personal 

knowledge of violent episodes between Jason and Molly, the entry that Molly had told 

Jack and her to say that Jason hit and yelled at Molly tends to recant Sarah’s prior 

assertion. 

Thus, this evidence supports the trial court’s finding of fact that the children’s 

statements at the DSS and Dragonfly House Interviews “that are offered by the 

defense as pertinent to the relationship between Molly Corbett and Jason Corbett 

have been specifically recanted.”

As the findings of fact are supported by competent evidence, they are thus 

conclusive and binding on appeal. Brown, 339 N.C. at 438, 451 S.E.2d at 189 

(quotation marks and citation omitted). “This holds true even if evidence exists from 

which a different conclusion could have been reached.” Id. (quotation marks and 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 33 -

citation omitted). 

Based on these findings, the trial court made the following conclusions:

11. The court is not assured of the personal knowledge 

of the declarants as to the underlying events described in 

that both children identified the source of their knowledge 

being nothing more than statements of a defendant and 

that defendant’s mother. The declarations contain no 

reference to seeing, hearing or perceiving anything about 

the events described except these statements of others.

12. The court is not assured of the children’s motivation 

to speak the truth, but instead finds the children were 

motivated, in the near immediate aftermath of the death of 

their father, to preserve a custody environment with the 

only mother-figure they could remember having known 

during their lives. The children appear to have known that 

if they were not in the custody of defendant Molly Corbett 

they would be taken to live in the Republic of Ireland with 

relatives of their father.

13. The proffered statements were specifically recanted 

and disavowed.

14. The proffered statements do not have circumstantial 

guarantees of trustworthiness. Further, this court having 

concluded the statements are not trustworthy, the court 

need not continue to the additional prongs of the Smith

analysis.

The findings support the trial court’s conclusions of law, including the 

conclusion that “[t]he proffered statements do not have circumstantial guarantees of 

trustworthiness.” Based on the record before this Court, the trial court’s 

determination that the children’s statements were not admissible under Rule 803(24) 

was not “manifestly unsupported by reason” or “so arbitrary that it could not have 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 34 -

been the result of a reasoned decision.” Rollins, 224 N.C. App. at 199, 734 S.E.2d at 

635 (quotation marks and citation omitted). Accordingly, the trial court did not abuse 

its discretion in determining that the children’s statements were not admissible 

under Rule 803(24) and excluding the statements as inadmissible hearsay.

C. Instances of Jason’s Anger and Violent Character

Although I conclude the trial court did not err in excluding the children’s 

statements, I nonetheless address Tom’s argument that “the trial court erred in 

excluding the statements . . . because they offered instances of Jason’s anger and 

violent character.”

Evidence of an individual’s character is generally inadmissible to prove he 

“acted in conformity therewith on a particular occasion[.]” N.C. Gen. Stat. § 8C-1, 

Rule 404(a) (2017). A criminal defendant may, however, introduce evidence of a 

victim’s pertinent character traits. N.C. Gen. Stat. § 8C-1, Rule 404(a)(2). 

Nonetheless, “[w]hether character evidence is admissible under Rule 404(a)(2) is 

merely a threshold inquiry, separate from the determination of the method by which 

character may be proved, which is governed by Rule 405.” State v. Bass, 371 N.C. 

535, 543, 819 S.E.2d 322, 327 (2018). “Under Rule 405, character may be 

demonstrated by evidence of specific instances of conduct only in cases ‘in which 

character or a trait of character of a person is an essential element of a charge, claim, 

or defense.’” Id. (quoting N.C. Gen. Stat. § 8C-1, Rule 405(b)). “Otherwise, character 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 35 -

may be proved only ‘by testimony as to reputation or by testimony in the form of an 

opinion.’” Id. (quoting N.C. Gen. Stat. § 8C-1, Rule 405(a)).

“Although under Rule 404(a)(2), evidence of a violent character is admissible 

to prove circumstantially that the victim was the aggressor, Rule 405(b) limits the 

method by which that fact may be proved.” Bass, 371 N.C. at 544, 819 S.E.2d at 327. 

“[W]ith regard to a claim of self-defense, the victim’s character may not be proved by 

evidence of specific acts.” Id.11 

At trial, Tom argued that the excluded statements “were primarily being 

offered on the issue of who was the aggressor . . . .” Tom further offered, “in particular, 

Jack’s statements about what he saw and what he witnessed and what he heard, as 

well as Sarah’s, . . . that that would be relevant to the issue of aggressor.” However, 

with regard to Tom’s claim of self-defense and defense of others, evidence of Jason’s 

specific acts may not be used to prove circumstantially that Jason was the aggressor. 

Id. at 544, 819 S.E.2d at 327. Accordingly, the trial court’s exclusion of the children’s 

statements regarding Jason’s prior violent behavior was not erroneous.

3. Aggressor Doctrine

 

11 Bass was decided by our Supreme Court during the pendency of this appeal and overruled 

this Court’s decision in State v. Bass, 253 N.C. App. 754, 802 S.E.2d 477 (2017), wherein we stated 

that “[e]vidence of specific instances of a victim’s character, known or unknown to the defendant at 

the time of the crime, may be relevant in establishing that the victim was the aggressor when 

defendant claims self-defense[,]” id. at 768, 802 S.E.2d at 485-86 (emphasis, quotation marks, and 

citation omitted), and held that defendant was entitled to present evidence of specific instances of 

conduct which demonstrated the victim’s violent behavior under Rule 405(b). Id. at 768, 802 S.E.2d 

at 486.
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 36 -

Tom next argues that the trial court erred by instructing the jury on the 

aggressor doctrine as to his claims of self-defense and defense of others because there 

was no evidence that Tom was the aggressor. 

A properly preserved objection to the trial court’s jury instructions is reviewed 

de novo on appeal. State v. Hope, 223 N.C. App. 468, 471, 737 S.E.2d 108, 111 (2012). 

Under de novo review, this Court considers the matter anew and is free to substitute 

its judgment for that of the trial court. State v. Williams, 362 N.C. 628, 632-33, 669 

S.E.2d 290, 294 (2008).

A trial court’s jury instructions should be “a correct statement of the law 

and . . . supported by the evidence.” State v. Conner, 345 N.C. 319, 328, 480 S.E.2d 

626, 629 (1997). The aggressor doctrine provides that a defendant may not receive 

the benefit of self-defense if he was the aggressor. State v. Juarez, 369 N.C. 351, 358, 

794 S.E.2d 293, 300 (2016). Likewise, a defendant may not receive the benefit of 

defense of others if he was the aggressor. See State v. Phifer, 165 N.C. App. 123, 129, 

598 S.E.2d 172, 176 (2004) (“The elements of self-defense are applicable to the defense 

of others.”). Furthermore, “[a] person is entitled under the law of self-defense to harm 

another only if he is without fault in provoking, engaging in, or continuing a difficulty 

with another.” State v. Effler, 207 N.C. App. 91, 98, 698 S.E.2d 547, 552 (2010) 

(internal quotation marks and citations omitted). An individual is the aggressor if he 

or she “aggressively and willingly enters into a fight without legal excuse or 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 37 -

provocation.” State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971). 

Moreover, “even if his opponent starts a fight, a defendant who provokes, engages in, 

or continues an argument which leads to serious injury or death may be found to be 

the aggressor.” State v. Lee, 258 N.C. App. 122, 126, 811 S.E.2d 233, 237 (2018) 

(citations omitted).

“[W]hen reviewing a trial court’s denial of a defendant’s request to exclude the 

aggressor instruction from the jury instruction on self-defense, the appellate court 

does not consider the evidence in a light favorable to the defendant, as it is the 

province of the jury to resolve any conflict in the evidence in that regard.” Id. at 127, 

811 S.E.2d at 237 (citations omitted). Thus, where conflicting evidence was presented 

as to which party was the initial aggressor when a person claims self-defense, 

instructing the jury on the aggressor doctrine is proper. See, e.g., State v. Cannon, 

341 N.C. 79, 83, 459 S.E.2d 238, 241 (1995) (“On the evidence before it, the trial court 

properly allowed the triers of fact to determine that defendant was the aggressor.”); 

State v. Terry, 329 N.C. 191, 199, 404 S.E.2d 658, 662-63 (1991) (“Although 

defendant’s evidence does not support the aggressor instruction, the State’s evidence 

supports it. By instructing jurors on the aggressor qualification, the trial court 

allowed the triers of fact to determine which testimony to believe.”). 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 38 -

Tom argues that “the only accounts given of the incident leading to [Jason’s] 

death were [Tom’s] testimony, and [Molly’s] written statement. No contradictory 

evidence was introduced by the State.” In his brief, Tom recites as follows:

[Tom] describes being awakened in the middle of the night 

by a commotion upstairs. He proceeded upstairs in his 

underwear and shirt, carrying a bat for protection in 

anticipation of a potential confrontation. Once he 

ascertained that the commotion originated from his 

daughter’s bedroom, he entered to find [Jason] strangling 

[Molly]. [Tom] testified about what he saw when he 

entered the bedroom, his initial fear that [Jason] would kill 

[Molly] and his stated intention to do just that. He testified 

about his fear that [Jason] would kill him after he wrestled

the bat from [Jason’s] grasp. Finally, he testified about his 

fear after regaining control of the bat that [Jason] would 

continue to try to kill both [Molly] and him if he did not 

take action. 

The State argues, however, that the circumstantial and physical evidence 

contradicts Molly and Tom’s testimonial evidence, thus allowing the jury to conclude 

that Molly and Tom’s version of events was not true. The State specifically argues 

that “the comparison o[f] the injuries to Jason (extreme) and the injuries to the two 

Defendants (none apparent or shown)” was sufficient evidence to support the 

aggressor instruction. 

Jason suffered multiple blunt force injuries, including “ten different areas of 

impact on the head, at least two of which had features suggesting repeated blows 

indicating a minimum of [twelve] different blows to the head. Additionally, he had a 

few other injuries elsewhere on his body, the torso and extremities.” On the other 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 39 -

hand, while Alphin and Bent observed redness on the left side of Molly’s neck, Dillard 

observed Molly “rubbing her neck . . . in a scrubbing motion-type thing” and Young 

testified that he saw Molly “continually tug[] and pull[] on her neck with her hand.” 

This evidence could allow a jury to conclude that the redness on Molly’s neck was selfinflicted and not a result of Jason’s strangulation. Tom had no visible injuries. 

While the disparity of the injuries in this case does not provide direct evidence 

that Tom was the initial aggressor, it provides evidence from which the jury could 

determine that Molly and Tom’s version of events was not true. See State v. Mumma, 

372 N.C. 226, 242, 827 S.E.2d 288, 298 (2019) (concluding that defendant could not 

show that, absent instructions on the aggressor doctrine, the jury would not have 

rejected his claim of self-defense where “the record contains no physical evidence 

tending to validate defendant’s otherwise unsupported claim to have acted in selfdefense and does contain substantial physical evidence tending to undercut his selfdefense claim including, but not limited to, the evidence that [the victim] sustained 

defensive wounds to her hand, that she had sustained stab wounds that had been 

inflicted from the rear, and that the wounds that defendant sustained were much less 

severe than the wounds that had been inflicted upon [the victim]”); State v. Presson, 

229 N.C. App. 325, 330, 747 S.E.2d 651, 656 (2013) (“Further, the lack of injuries to 

defendant, compared to the nature and severity of the wounds on [the victim] at his 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 40 -

death, is sufficient evidence from which a jury could find that defendant was the 

aggressor . . . .”).

Moreover, the State presented the following evidence: (1) one of Jason’s head 

wounds was inflicted after he was dead; (2) the blood spatter indicated that Jason’s 

head was struck as it was descending and/or was near the ground; (3) the toxicology 

report from Jason’s body showed the presence of the drug Trazodone, which induces 

sleep; (4) Jason was naked and unarmed when the altercation occurred in his 

bedroom at 3:00 am; (5) the children, who were sleeping in their bedrooms up the 

stairs from Jason and Molly’s bedroom, were undisturbed; (6) EMS and law 

enforcement responders noticed upon their arrival that some of the blood on Jason’s 

body had dried; (7) one paramedic testified that Jason’s body felt cool, and asked 

another paramedic, “How long did you say they waited before they called 911[?]”; (8) 

Tom told a co-worker he hated Jason.

Although the evidence could allow a jury to determine that Tom armed himself 

with a baseball bat when he heard a commotion on the floor above, and came to 

Molly’s defense when he saw Jason choking her,12 the evidence could also allow a jury 

to determine that Tom armed himself with a baseball bat and aggressively and 

willingly entered into the fight with Jason without legal excuse or provocation. As 

 

12 Tom correctly notes, “In this case, all the evidence and testimony entitled [Tom] to a jury 

instruction on self-defense.” Such instruction is not at issue here.
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 41 -

conflicting evidence was presented as to whether Tom was the initial aggressor, the 

trial court did not err in instructing the jury on the aggressor doctrine as to Tom.

4. Blood Spatter Expert Testimony

Defendants next argue that the trial court erred by admitting into evidence 

certain testimony by the State’s blood spatter expert, Stuart James. Specifically, 

Defendants argue that the testimony regarding stains on the underside of the hem of 

Tom’s boxer shorts should have been excluded as unreliable under North Carolina 

Evidence Rule 702(a) because it was not “the product of reliable principles and 

methods reliably applied to the facts of the case[.]” 

“In order to preserve an issue for appellate review, a party must have 

presented to the trial court a timely request, objection, or motion . . . .” N.C. R. App. 

P. 10(a)(1). “To be timely, an objection to the admission of evidence must be made at 

the time it is actually introduced at trial.” State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 

319, 322 (2010) (quotation marks and citations omitted). “An objection made only 

during a hearing out of the jury’s presence prior to the actual introduction of the 

testimony is insufficient.” State v. Snead, 368 N.C. 811, 816, 783 S.E.2d 733, 737-38 

(2016) (internal quotation marks and citation omitted). Moreover, “[t]he admission 

of evidence without objection waives prior or subsequent objection to the admission 

of evidence of a similar character.” State v. Walters, 357 N.C. 68, 104, 588 S.E.2d 344, 

365 (2003) (internal quotation marks and citations omitted).
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 42 -

During James’ voir dire examination, Defendants objected to James’ 

conclusions that the stains on Tom’s boxer shorts were impact blood spatter arising 

from blunt force strikes to Jason’s head while he was on the ground as unreliable 

because (1) those particular stains never underwent blood testing, presumptive or 

confirmatory, so James could not state with scientific certainty that they were blood; 

(2) James never viewed a photograph of Tom wearing the boxer shorts, so he could 

not state with certainty the position of Tom’s body when those stains occurred; and 

(3) James based his conclusions that the stains were “very characteristic of blood 

spatter” and “likely created during the same event” as the confirmed blood stains on 

the shorts based solely on his visual observation of “their location, size, shape[,] and 

distribution.” The trial court overruled Defendants’ objections, concluding that 

James’ testimony was based on sufficient facts and data, was the product of reliable 

principles and methods with which he is familiar and with which others in his field 

are familiar, and that James had applied those principles to the facts. 

At trial, James testified without objection as follows:

With respect to the small spatters on the front underside 

of the left leg of the shorts, these were consistent with the 

wearer of the shorts close to and above the source of the 

spattered blood. To what extent, I can’t really say. In order 

for the stains to get to that location on the inside of the leg, 

they would have to be traveling, you know, at least 

somewhat upward in order to do that. My conclusion there 

was the source of the impact spatters is most likely the 

head of Jason Corbett while it was close to the floor in the 

bedroom.
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 43 -

Although Defendants objected on reliability grounds during voir dire to the 

introduction of James’ challenged testimony, Defendants failed to object to the 

testimony when it was elicited by the State at trial. As Defendants did not object 

when the State elicited the testimony before the jury, Defendants failed to preserve 

the alleged error for appellate review. Snead, 368 N.C. at 816, 783 S.E.2d at 738. 

Moreover, the unchallenged admission of James’ testimony “waive[d] prior or 

subsequent objection to the admission of evidence of a similar character.” Walters, 

357 N.C. at 104, 588 S.E.2d at 365.

Furthermore, because Defendants failed to specifically and distinctly allege 

plain error in their briefs, they have waived their right to have this issue reviewed on 

appeal under the plain error standard. See N.C. R. App. P. 10(a)(4); State v. Joyner, 

243 N.C. App. 644, 648, 777 S.E.2d 332, 335 (2015). Accordingly, Defendants’ 

argument should be dismissed.

5. Fitzpatrick Statement

Defendants next argue that the trial court erred by excluding a statement 

allegedly made to Tom by the late Michael Fitzpatrick, the father of Jason’s deceased 

first wife, Margaret. Specifically, Defendants argue that the trial court erroneously 

determined the statement was inadmissible hearsay and erroneously concluded the 

statement should be excluded under Rule 403. 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 44 -

Tom sought to introduce a statement allegedly made to him by Fitzpatrick to 

help illustrate Tom’s state of mind during the altercation. Tom offered in voir dire 

that in an interview he gave his employer on 20 August 2015, he related that he had 

asked Fitzpatrick at some point in time what he thought of Jason. Tom stated that 

his “memory was [Fitzpatrick] said, ‘I think he killed my daughter.’” Tom further 

explained in the interview, “I don’t know if that was a bitter man, he needed someone 

to blame for his daughter’s death or he had any basis for this.” 

In response in voir dire, the State proffered the coroner’s report “finding that 

Mr. Fitzpatrick’s daughter had died of an asthma attack”; testimony from Jason’s 

family of the good relations with Fitzpatrick; and a statement Fitzpatrick gave, before 

he passed away, to the Solicitor’s Office in Ireland, averring, “I can also state 

categorically that we never discussed my daughter Margaret or the circumstances of 

her death nor did I inform [Tom] that Jason had killed my daughter Margaret. Such 

statements by [Tom] are totally and utterly untrue and mischievous.” The State 

further argued that, despite the fact that Tom, a lawyer with 30 years’ FBI 

experience, was interviewed by law enforcement about the incident on 2 August 2015 

– the day the incident occurred and 18 days prior to the interview he gave his

employer – and offered, “‘perhaps it would be helpful if I just kind of launched into a 

story . . . because it will contribute to my state of mind[,]’” Tom did not mention 

Fitzpatrick’s statement at that interview.
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 45 -

Tom’s attorney responded in voir dire, “Just so we think it is relevant for state 

of mind, we do think we are not saying indeed that’s what was heard. We are saying 

it was his state of mind . . . .” 

In ruling on the admissibility of Fitzpatrick’s statement, the court announced:

All right. I have carefully considered the alleged statement 

of Mr. Fitzpatrick with respect to the cause of Margaret 

Corbett’s death. I have considered the totality of the 

circumstances relating to this hearsay statement. The selfserving nature of it, and in my discretion I have determined 

under Rule 403 that the probative value of this evidence 

substantially is outweighed by the danger of unfair 

prejudice, confusion of the issues[,] and misleading to the 

jury, so I will not permit the statement of Mr. Fitzpatrick 

through [Tom].

A. Hearsay Determination

Tom first argues that the trial court erred as a matter of law in concluding that 

Mr. Fitzpatrick’s statement was hearsay as the statement was not being offered to 

prove the truth of the matter asserted but was instead being offered to show Tom’s 

state of mind. Tom misinterprets the court’s ruling.

Although in announcing its ruling the trial court referred to “this hearsay 

statement[,]” the plain language of the court’s ruling indicates that the trial court did 

not exclude Fitzpatrick’s statement under Rule 802 because it was hearsay,13 but 

instead excluded the statement, in its discretion, after conducting a balancing test 

 

13 “Hearsay is not admissible except as provided by statute or by these rules.” N.C. Gen. Stat. 

§ 8C-1, Rule 802.
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 46 -

under Rule 403. Had the court concluded the statement was hearsay, and excluded 

it as such, it would not have engaged in a 403 balancing test. See State v. Brown, 335 

N.C. 477, 486-87, 439 S.E.2d 589, 595 (1994) (“Assuming, arguendo, that the 

statements were not hearsay and that they had relevance when presented in this 

manner, we note that they are still subject to exclusion if their ‘probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, 

or misleading the jury.’” (quoting N.C. Gen. Stat. § 8C-1, Rule 403 (1992)).

B. 403 Balancing

Tom further argues that the trial court erroneously excluded the statement 

under Rule 403 because the court “fundamentally misunderstood the highly probative 

purpose for which it was offered.” (Original in all capital letters). “Despite [Tom’s] 

several clarifications that the [] [s]tatement was offered for state of mind and not to 

prove its truth,” the argument continues, “the trial court incorrectly concluded that 

the statement was hearsay.” “The trial court then excluded the testimony under Rule 

403, concluding that potential for prejudice, confusion of the issues, and misleading 

the jury outweighed the probative value of the testimony.” Tom thus concludes, “Such 

a conclusion indicates that the trial court did not understand the testimony would be 

offered for non-hearsay purposes.”

Relevant evidence is “evidence having any tendency to make the existence of 

any fact that is of consequence to the determination of the action more probable or 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 47 -

less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 

401 (2017). “Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, 

or misleading the jury . . . .” N.C. Gen. Stat. § 8C-1, Rule 403 (2017). The trial court’s 

decision to exclude evidence under Rule 403 is reviewed on appeal for abuse of 

discretion. State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008). An abuse 

of discretion results only when “the court’s ruling is manifestly unsupported by 

reason or is so arbitrary that it could not have been the result of a reasoned decision.” 

Id. (quotation marks and citations omitted). 

The substance of Tom’s argument concerning the trial court’s Rule 403 analysis 

repeats and amplifies his argument that the trial court erred in concluding the 

statement was hearsay. However, as indicated above, the trial court did not exclude 

Fitzpatrick’s statement under Rule 802 because it was hearsay, but instead excluded 

the statement, in its discretion, after conducting a balancing test under Rule 403.

The trial court could reasonably have concluded that the statement was only 

weakly, or not at all, probative of Tom’s fear and apprehension of Jason. According 

to Tom’s own explanation, Fitzpatrick’s statement had little, if any, effect on Tom’s 

fear and apprehension of Jason where Tom himself questioned the veracity and basis 

of the statement. Additionally, in the 2 August 2015 interview, when Tom was 

forthcoming with a detailed explanation of the events leading up to and including the 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 48 -

altercation “‘because it will contribute to my state of mind[,]’” Tom’s omission of 

Fitzpatrick’s statement further indicates the statement had little, if any, effect on 

Tom’s state of mind as to his fear and apprehension of Jason. On the other hand, 

given the nature of the accusation that Jason killed his first wife, the trial court could 

have concluded there was a strong danger of unfair prejudice and confusion of the 

issues. 

The record shows that the trial court conducted a lengthy voir dire hearing on 

the admissibility of the evidence, weighed the probative value of the evidence against 

the possibility of unfair prejudice, and specifically found that “the probative value of 

this evidence substantially is outweighed by the danger of unfair prejudice, confusion 

of the issues[,] and misleading to the jury[.]” The trial court’s ruling was not 

“manifestly unsupported by reason” or “so arbitrary that it could not have been the 

result of a reasoned decision[,]” id., and thus, the trial court properly exercised its 

discretion in excluding Fitzpatrick’s statement. See State v. McCray, 342 N.C. 123, 

131, 463 S.E.2d 176, 181 (1995). 

6. Molly’s Statement

Defendants next argue that the trial court erred by striking Tom’s testimony 

that he heard Molly scream, “Don’t hurt my dad[,]” during the altercation. Citing 

State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703 (2006), Defendants argue that 

Molly’s statement was offered to illustrate the reasonableness of Tom’s fear and 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 49 -

apprehension of Jason—a necessary element of self-defense and defense of others—

and was not inadmissible hearsay.

Even assuming, arguendo, that the trial court erred by sustaining the State’s 

objection, Tom cannot show that he was prejudiced by the error.

A defendant is prejudiced by errors relating to rights 

arising other than under the Constitution of the United 

States when there is a reasonable possibility that, had the 

error in question not been committed, a different result 

would have been reached at the trial out of which the 

appeal arises. The burden of showing such prejudice under 

this subsection is upon the defendant.

N.C. Gen. Stat. § 15A-1443(a) (2017). 

Tom testified in detail about the altercation prior to when he heard Molly 

scream. During this testimony, he indicated three separate times that he was scared. 

Immediately prior to the stricken testimony, Tom testified that Jason had just shoved 

him across the bed. Tom then testified, “And that’s -- you know, if I can get any more 

afraid, that was it.” 

Tom had already testified about circumstances illustrating the reasonableness 

of his fear and apprehension, and Molly’s statement—made after the altercation had 

been well underway—was of mild, if any, additional value. Defendants’ bare 

assertion on appeal that the “error significantly prejudiced” them does not meet their 

burden of showing “there is a reasonable possibility that, had the error in question 

not been committed, a different result would have been reached at the trial.” Id. 

7. Acting in Concert
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 50 -

Molly argues that the trial court erred by instructing the jury on the criminal 

liability theory of acting in concert. Molly further argues that the trial court’s acting 

in concert instruction was incomplete and misleading, and thus prejudicially 

erroneous, because the trial court failed to provide the parenthetical explanation on 

the “mere presence” component of acting in concert.

A. Acting in Concert Charge

Molly argues the trial court erred by instructing the jury on acting in concert 

because there was no evidence that she shared a common plan or purpose with Tom 

to kill Jason. 

As a threshold matter, I first address the State’s argument that this issue has 

not been properly preserved for appellate review because, although Molly objected at 

the charge conference to the acting in concert instruction, Molly “failed to renew the 

objection” “after the jury charge was completed[.]” 

However, “[o]ur Supreme Court has held, and we reiterate, that when a party 

has objected to proposed jury instructions during a charge conference, and the trial 

court has considered and denied the request, that the party need not repeat its 

objections after the jury charge is given.” Wilson v. Burch Farms, Inc., 176 N.C. App. 

629, 633, 627 S.E.2d 249, 254 (2006) (citing Wall v. Stout, 310 N.C. 184, 188-89, 311 

S.E.2d 571, 574 (1984)). Therefore, by objecting to the proposed acting in concert 

instruction at the charge conference and receiving a ruling on her objection, Molly 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 51 -

has properly preserved this issue for appeal. We review a properly preserved 

challenge to the trial court’s decision regarding jury instruction de novo. State v. 

Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). 

“The trial court must instruct the jury on the law arising on the evidence.” 

State v. Simpson, 230 N.C. App. 119, 123, 748 S.E.2d 756, 760 (2013) (quotation 

marks and citation omitted). In order to support a jury instruction on acting in 

concert, the State must present sufficient evidence that the defendant was “present 

at the scene of the crime” and acted “together with another who does the acts 

necessary to constitute the crime pursuant to a common plan or purpose to commit 

the crime.” State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979). Thus, 

“[o]ne of the essential elements of acting in concert is that there is evidence of a 

common plan or purpose.” State v. Williams, 299 N.C. 652, 657, 263 S.E.2d 774, 778 

(1980). 

While “[i]t is not . . . necessary for a defendant to do any particular act 

constituting at least part of a crime in order to be convicted of that crime under the 

concerted action principal[,]” Joyner, 297 N.C. at 357, 255 S.E.2d at 395, “[e]vidence

that a defendant did some act forming a part of the crime charged, when considered 

together with evidence that others also did acts leading to the crime’s commission, 

strongly indicates that the defendant was acting in concert with others to commit the 

crime charged.” State v. Diaz, 317 N.C. 545, 547, 346 S.E.2d 488, 490 (1986). 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 52 -

Moreover, evidence that a defendant was engaged with another pursuant to a 

common plan or purpose may be found from the circumstances in which the incident 

occurred. State v. Kaley, 343 N.C. 107, 110, 468 S.E.2d 44, 46 (1996).

The altercation took place in Molly’s bedroom at approximately 3:00 am when 

Jason was naked and unarmed. It is undisputed that Molly was present at the scene 

while Tom repeatedly hit Jason in the head with a baseball bat. During this time, by 

her own admission, Molly tried to hit Jason in the head with a brick, and the evidence 

supports a finding that Molly did in fact hit Jason in the head with a brick. This is 

evidence from which the jury could conclude that Molly and Tom were engaged in a 

common plan or purpose. Accordingly, the trial court did not err by instructing the 

jury on acting in concert.

B. Delivery of Acting in Concert Charge

Molly further contends that the trial court’s acting in concert instruction was 

prejudicially erroneous because the trial court failed to instruct that “[a] defendant is 

not guilty of a crime merely because the defendant is present at the scene[.]”

The pattern jury instruction for acting in concert reads as follows:

For a defendant to be guilty of a crime, it is not 

necessary that the defendant do all of the acts necessary to 

constitute the crime. If two or more persons join in a 

common purpose to commit (name crime), each of them, if 

actually or constructively present, is guilty of the crime 

(and also guilty of any other crime committed by the other 

in pursuance of the common purpose to commit (name 

crime), or as a natural or probable consequence thereof.)
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 53 -

(A defendant is not guilty of a crime merely because 

the defendant is present at the scene, even though the 

defendant may silently approve of the crime or secretly 

intend to assist in its commission. To be guilty the 

defendant must aid or actively encourage the person 

committing the crime, or in some way communicate to 

another person the defendant’s intention to assist in its 

commission.)

N.C.P.I.—Crim. 202.10 (2017) (footnotes omitted). “While not mandatory, these 

instructions serve as a guide for judges on how a jury should be instructed concerning 

a particular crime.” State v. Lineberger, 115 N.C. App. 687, 691, 446 S.E.2d 375, 378 

(1994). Moreover, “[o]ptional language is contained in parentheses. The optional 

parenthetical phrases should be given only when warranted by the evidence.” 

N.C.P.I. Introduction, III. User’s Guide, Use of Brackets, Parentheses, and Type Styles

(June 2016).

Again, the evidence shows that Tom hit Jason in the head with a baseball bat. 

Molly admitted that she tried to hit Jason in the head with a brick, and the evidence 

supports a finding that Molly did in fact hit Jason in the head with a brick. Thus, the 

evidence did not show that Molly was “merely” present at the scene but instead 

showed that Molly actually aided Tom at the scene. As the optional parenthetical 

instruction on “mere presence” was not warranted by the evidence, it was not 

erroneously omitted. Moreover, given the evidence that Molly was not “merely” 

present at the scene, even if the trial court had erroneously omitted the “mere 

presence” instruction, Molly cannot show that “there is a reasonable possibility that, 
STATE V. CORBETT & MARTENS

COLLINS, J., concurring in part and dissenting in part.

- 54 -

had the error in question not been committed, a different result would have been 

reached at the trial . . . .” N.C. Gen. Stat. § 15A-1443(a); see State v. Malachi, 371 

N.C. 719, 738, 821 S.E.2d 407, 421 (2018) (applying the harmless error standard to 

an alleged error in a jury instruction). 

8. Cumulative Error

Tom next argues that, should this Court conclude that no single error was 

prejudicial, the cumulative effect of the errors nevertheless was sufficiently 

prejudicial to require a new trial. “Cumulative errors lead to reversal when ‘taken as 

a whole’ they ‘deprived [the] defendant of his due process right to a fair trial free from 

prejudicial error.’” State v. Wilkerson, 363 N.C. 382, 426, 683 S.E.2d 174, 201 (2009) 

(quoting State v. Canady, 355 N.C. 242, 254, 559 S.E.2d 762, 768 (2002)). Although 

Tom has contended to this Court that numerous errors were made during trial, I have 

found only one instance of potential error, which was nonprejudicial. This 

nonprejudicial error did not deprive Tom of his due process right to a fair trial.

IV. Conclusion

I conclude that Defendants received a fair trial, free from prejudicial error.