Rule 10(a)(3) Requires Offense-Specific Motions to Dismiss to Preserve Sufficiency Claims

I. Introduction

State v. Tadlock (N.C. May 22, 2026) is a preservation decision with practical consequences for criminal trials involving multiple charges. The defendant, Bryan Scott Tadlock, was tried in Haywood County Superior Court and convicted of several felonies, including two counts of assault by strangulation under N.C.G.S. § 14-32.4.

The key appellate dispute was not ultimately about whether the evidence supported two strangulation counts, but rather whether the defendant preserved any sufficiency-of-the-evidence challenge to those counts when he expressly declined to move to dismiss them at trial. The Supreme Court addressed a threshold issue: whether the Court of Appeals violated preservation principles under Rule 10(a)(3) by reaching the merits of an unpreserved sufficiency argument.

II. Summary of the Opinion

The Supreme Court held that Rule 10(a)(3) preservation is offense specific. Because defendant did not make a motion to dismiss either assault-by-strangulation charge—and in fact affirmatively exempted those charges from his dismissal motion—the Court of Appeals erred in reviewing the sufficiency of the evidence supporting two counts.

The Court therefore reversed in part the Court of Appeals’ preservation ruling and vacated in part the portion of the Court of Appeals’ opinion that addressed the merits of the unpreserved sufficiency challenge. No other issues were before the Supreme Court.

III. Analysis

A. Precedents Cited

1. State v. Reber (preservation’s systemic function)

The Court framed preservation as an institutional safeguard, citing State v. Reber, 386 N.C. 153 (2024) for the proposition that preservation rules “serve crucial functions in our justice system.” This sets the tone: the decision is not merely technical; it is structural—ensuring trial courts are given the first opportunity to rule and ensuring appellate courts review issues actually litigated.

2. State v. Golder (what a proper motion preserves—and what it does not)

The Court of Appeals relied on State v. Golder, 374 N.C. 238 (2020), reading it to mean that once a defendant makes a motion to dismiss at the proper time, all sufficiency issues are preserved on appeal.

The Supreme Court clarified the scope of Golder: it addresses the effect of a timely motion—i.e., that it preserves insufficiency arguments—but it does not excuse the failure to make a motion in the first place, and it does not transform a motion directed to some charges into a motion directed to all charges. The Court emphasized that the Court of Appeals’ approach would “gut” Rule 10(a)(3).

3. Rule 10(a)(3) itself (textual anchor and “offense-specific” requirement)

The Court treated N.C. R. App. P. 10(a)(3) as dispositive. Its plain language bars sufficiency review “unless a motion to dismiss” is made “at trial.” The Court read this requirement as charge-by-charge, consistent with how verdicts and judgments operate.

4. State v. Dew and the Court’s footnote guidance on “distinct interruption” issues

Although the Supreme Court did not reach the merits under State v. Dew, 379 N.C. 64 (2021), it discussed the posture in which “distinct interruption” questions often arise. In footnote 3, the Court signaled that where evidence could support multiple guilty verdicts, the jury may return them and the trial court may later decide the legal question of merger/arrest of judgment if required by Dew.

5. State v. Fields (remedy framing: arrest judgment vs. vacatur)

The Court cited State v. Fields, 374 N.C. 629 (2020) to illustrate that when multiple convictions arise from the same act, the appropriate remedy can be arresting judgment rather than treating the record as fatally defective. This supports the Court’s broader message: sufficiency dismissal and post-verdict merger are distinct procedural tools.

6. Chief Justice Newby’s concurrence: State v. Rambert, State v. Dudley, and related authorities

Chief Justice Newby (concurring) agreed the issue was unpreserved but offered a substantive roadmap if the Court were to address the merits later: he argued Dew “distinct interruption” does not apply to assault by strangulation. He analogized strangulation to discrete-act offenses like:

  • State v. Rambert, 341 N.C. 173 (1995) (each pistol shot into occupied property can be a separate count because each shot is a distinct act in time requiring a new volitional trigger pull);
  • State v. Dudley, 319 N.C. 656 (1987) (rape is not a continuous offense; each act of intercourse is a distinct offense), quoting State v. Small.

The concurrence contrasted those specific-act crimes with “broad concept” offenses (like general assault), where Dew polices overcharging absent a clear break.

7. Foundational definitions referenced in the concurrence

In explaining Dew, the concurrence quoted: State v. Roberts, 270 N.C. 655 (1967) for the definition of assault, and referenced State v. Calderon, 388 N.C. 700 (2025) (applying Dew to indecent liberties).

For strangulation’s meaning, the concurrence cited the Pattern Jury Instructions and State v. Braxton, 183 N.C. App. 36 (2007), which used the Pattern Instructions to define “strangulation.”

B. Legal Reasoning

1. The dispositive move: separating “trial court inquiry” from a “motion”

The trial court sua sponte asked why there were “two distinct charges of strangulation” and how they were distinct in time. Defense counsel responded that the matter “could have been conceivably consolidated,” but he would “leave it in the court’s discretion.” The Supreme Court held that this response is not a motion to dismiss and does not preserve a sufficiency claim.

2. Offense-specific preservation: why a motion on some charges does not carry over to others

The Court’s offense-specific holding rests on both text and structure:

  • Text: Rule 10(a)(3) ties sufficiency review to the making of a motion to dismiss “the crime charged.”
  • Structure: verdicts and judgments are rendered offense-by-offense; Rule 10(a)(3) even states that a successful motion has the effect of a “not guilty” verdict “as to such defendant” on that offense.

Accordingly, a defendant who moves to dismiss only “four of the six charges” does not preserve sufficiency issues on the two exempted charges.

3. The Court’s ethical/practical point: preservation cannot be built on intentionally unmade arguments

In footnote 2, the Court connected the record to Rule 3.1 of the North Carolina Rules of Professional Conduct, noting counsel’s statement that he could not “in good faith” seek dismissal of the strangulation charges. The Court highlighted the incongruity of treating an argument as both “frivolous” (and thus ethically barred) and yet somehow “preserved” for appellate review.

4. Relationship to merger and post-verdict remedies

The majority’s footnote 3 addresses a recurring confusion: even if multiple counts go to the jury, a trial court can later resolve whether multiple punishments are legally permissible (e.g., whether convictions should merge or judgment should be arrested). This separates:

  • Sufficiency submission (whether evidence supports sending counts to the jury), from
  • Post-verdict legal limitations (whether multiple punishments may be entered).

C. Impact

  • Trial practice: Defense counsel must make clear, charge-specific motions to dismiss to preserve sufficiency review. A global motion to dismiss “some indictments,” or a motion that expressly carves out charges, will foreclose appellate sufficiency challenges on the carved-out counts.
  • Appellate practice: Courts of Appeals panels are directed to enforce Rule 10(a)(3) strictly; they may not reach merits merely because the trial court discussed the issue or because the record contains a colloquy about the charge.
  • Charging and sentencing dynamics: The decision reinforces the procedural route suggested in footnote 3—letting the jury decide multiple counts when evidence supports them and then addressing merger/arrest of judgment if needed—rather than using unpreserved sufficiency review as a back-end mechanism to limit counts.
  • Future strangulation litigation: While not binding, Chief Justice Newby’s concurrence signals a potential future doctrinal development: that each completed strangulation may be treated as an independent unit of prosecution, making Dew inapplicable to N.C.G.S. § 14-32.4(b).

IV. Complex Concepts Simplified

  • Preservation: The requirement that a party raise an issue in the trial court (in the required manner and at the required time) so an appellate court may review it.
  • Motion to dismiss (criminal): A defense request that the court remove a charge from the jury because the State’s evidence is legally insufficient on one or more elements.
  • Sufficiency of the evidence: Whether the State offered “substantial evidence” of each element such that a reasonable juror could find guilt.
  • Offense specific: Applied separately to each count/charge; action taken on one count does not automatically apply to others.
  • Sua sponte / ex mero motu: Action taken by the court on its own initiative, without a request by either party.
  • Arrest of judgment: A post-verdict remedy preventing entry of judgment on a conviction for legal reasons (often used where multiple convictions cannot legally result in multiple punishments on the facts).
  • “Distinct interruption” (from State v. Dew): A break separating one assault from another for charging multiple counts of certain assault-type offenses; the concurrence suggests this concept should not govern assault by strangulation.

V. Conclusion

State v. Tadlock establishes a clear procedural rule: under Rule 10(a)(3), sufficiency-of-the-evidence claims are preserved only by a timely, charge-specific motion to dismiss; a motion directed to some charges does not preserve sufficiency challenges to others. The decision reinforces strict adherence to appellate preservation, protects the trial court’s role as first decision-maker, and shapes how defendants must litigate multi-count cases at trial to ensure meaningful appellate review.