State v. Johnson

IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA25-1000 Filed 16 September 2026 Wake County, Nos. 22CR336508-910, 22CR337107-910 STATE OF NORTH CAROLINA v. STANLEY LEMONT JOHNSON Appeal by defendant from judgment entered 28 April 2025 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 20 May 2026. Attorney General Jeff Jackson, by Solicitor General Nicholas S. Brod, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L. VandenBerg, for defendant. ARROWOOD, Judge. Following a jury trial in Wake County Superior Court, Stanley Lemont Johnson (“defendant”) was found guilty of possession of a firearm by a felon, not guilty of first-degree murder with malice, premeditation, and deliberation, and guilty of first-degree felony murder, with the firearm charge as the predicate felony. The trial court arrested judgment on the firearm charge but entered judgment for murder and sentenced defendant to life without parole. Defendant appeals from the judgment. I. Background  STATE V. JOHNSON Opinion of the Court A. Statement of Facts In November 2022, defendant lived with his girlfriend, Tinisha Ratliff (“Ms. Ratliff”) in a rooming house on Bragg Street in Raleigh. Defendant was 44-years-old and has moderate intellectual disabilities, unable to read or write well. Defendant has a lengthy criminal record, including felonies, and is therefore forbidden from possessing any firearm. Ms. Ratliff testified that they had been in an “off-and-on relationship” for two years, and that defendant was “mentally, physically, emotionally” abusive. In October 2022, Ms. Ratliff contacted police after defendant assaulted her and left her with injuries. Jermiller Kernny (“Ms. Kernny”), Ms. Ratliff’s cousin, was aware of the ongoing abuse, including the recent incident, and had previously confronted defendant about his behavior. Ms. Kernny’s mother lived across from the Bragg Street address. At about 4:00 a.m. on 4 November 2022, defendant’s sister picked him up from Bragg Street so he could stay with family. Late on 5 November 2022, or in the early morning hours of 6 November, Ms. Ratliff and defendant had an altercation, the details of which were disputed at trial. Ms. Ratliff testified that she returned to the rooming house to find her door open, whereupon defendant appeared and “aggressively” asked to speak to her. She stated that over the next 25 to 45 minutes the conversation escalated to shouting; Ms. Ratliff claimed that defendant pointed a gun to her head. Ms. Kernny arrived and attempted to intervene; as defendant left the house Ms. Kernny punched him in the 2  STATE V. JOHNSON Opinion of the Court back of the head and pushed him down, telling him to leave “before something else happen[s]” to him. When Ms. Kernny pushed defendant onto his back, a gun fell out of defendant’s pocket and into the street. Defendant grabbed the gun as he stood up and shot Ms. Kernny. The State introduced a video of the shooting from a neighboring house’s security camera. It captures the sound of yelling and scuffling, which is obstructed from the camera’s view by a tree. The video shows defendant dodge a blow by Ms. Kernny as they circle each other, with defendant stumbling, and Ms. Kernny standing still for several seconds before defendant shoots her from a few feet away. In November 2022, defendant weighed 145 pounds. Ms. Kernny, who was 5’7” and 300 pounds, died from a single gunshot wound to her upper right chest. A toxicology screen indicated there was alcohol and cocaine in her system. In his testimony, defendant admitted that he was not supposed to have a gun but claims he needed to protect himself because his environment is “violent.” Defendant denied having been physically abusive towards Ms. Ratliff. As to his mental state when he shot Ms. Kernny, he testified, “I didn’t want to pull the trigger, but I did. It was just a spur-of-the-moment thing . . . [M]y mind was racing, and I just – I reacted.” The State called Iworthia Harris (“Ms. Harris”), who describes herself as Ms. Kernny’s “godsister,” to testify in its rebuttal evidence. She described defendant’s relationship with Ms. Ratliff as “volatile” with “a lot of physical abuse that [she] 3  STATE V. JOHNSON Opinion of the Court witnessed firsthand” including a violent altercation on the day before the shooting, which left Ms. Ratliff with a black eye. On the night of the shooting, Ms. Harris was at the Kernny home for a party, which ended by 1:15 a.m., when Ms. Ratliff knocked on the door and told her and Ms. Kernny, “He said that tonight is the night that he’s going to kill me. He has a gun. I really feel like he’s going to kill me. Please, please help me.” Ms. Kernny replied that she was tired of sticking up for Ms. Ratliff because she always returned to defendant, but agreed to cross the street after finishing her video game, to help her get some clothes so she could spend the night. Ms. Harris stated that during the altercation, she saw defendant stumble backwards, catch his balance, raise his arm, fire his gun, and run away. She testified that Ms. Kernny had not posed “any imminent danger” to defendant, who was “the aggressor from the beginning.” B. Indictments Defendant’s indictment for murder charged that he “unlawfully, willfully, and feloniously did of malice aforethought kill and murder Jermiller Kernny.” The indictment for possession of a firearm by a felon charged that defendant “unlawfully, willfully, and feloniously did possess and have in the defendant’s control a semi- automatic pistol, which is a firearm[,]” and that defendant was previously found guilty of a felony (Obtaining Property by False Pretense) on 24 November 2020. C. Charge Conference At the charge conference, the trial court informed the parties that it would 4  STATE V. JOHNSON Opinion of the Court instruct the jury on first-degree murder based on premeditation and deliberation, with self-defense and diminished capacity; second-degree murder, with self-defense; voluntary manslaughter, with imperfect self-defense and provocation; and possession of a firearm by a felon. The trial court also informed the parties of its intent to sua sponte instruct the jury on felony murder, with possession of a firearm by a felon as the underlying predicate offense. The defense objected, arguing that our courts have never approved such a charge and that the possession offense is not encompassed by the felony murder statute. The defense also filed its objection in writing. The defense twice renewed its objections to the court’s instructions and further objected to the felony murder charge on due process grounds. The defense also filed an alternative request for two instructions if the court did instruct on felony murder: (1) to define the underlying felony offense as “possession of a firearm by a convicted felon while using the firearm to threaten or assault someone other than the decedent”; and (2) to instruct on self- defense to felony murder based on State v. McLymore, 380 N.C. 185 (2022). The trial court denied both requests. D. Jury Instructions and Verdict Ultimately, the jury heard instructions on first-degree murder by malice, premeditation, and deliberation, with self-defense and diminished capacity; first- degree murder by felony murder using possession of a firearm by a felon as the underlying felony, without self-defense or diminished capacity; second-degree 5  STATE V. JOHNSON Opinion of the Court murder, with self-defense; voluntary manslaughter by imperfect self-defense and by provocation; and possession of a firearm by a felon. The court’s instruction for felony murder read as follows: First, that the defendant committed the offense of possession of a firearm by a convicted felon. The felony offense of possession of a firearm by a convicted felon requires, first, that on November 24, 2020, [describes details of Mr. Johnson’s obtaining property felony]; and second, that after November 24, 2020, the defendant possessed a firearm. Second, that while committing the offense of possession of a firearm by a convicted felon and with the use of said firearm, the defendant killed the victim. And third, that the defendant’s act was a proximate cause of the victim’s death. A proximate cause is a real cause, a cause without which the victim’s death would not have occurred. The jury acquitted defendant of first-degree murder on the basis of malice, premeditation, and deliberation. The jury found defendant guilty of possession of a firearm by a felon and felony murder with possession of a firearm as the underlying offense. The court entered judgment for felony murder, arrested judgment on the possession offense, and sentenced defendant to life without parole. Defendant filed written notice of appeal on 29 April 2025. II. Discussion Defendant first contends that possession of a firearm by a felon should be categorically excluded as a felony underlying felony murder, based upon the plain language, purpose, and legislative history of North Carolina’s felony murder statute, as well as additional principles of statutory construction. Defendant contends that 6  STATE V. JOHNSON Opinion of the Court the court’s charge and jury instructions on felony murder violated his right to due process. Defendant requests vacatur of his conviction and that his case be remanded for a new trial. Defendant properly preserved the above issues for appellate review by objecting in open court and doing the same in writing. For the following reasons, we reject defendant’s argument that the offense is categorically excluded from the statute. However, we vacate defendant’s conviction on due process grounds and remand his case for a new trial. A. The Felony Murder Statute Does Not Categorically Exclude Possession of a Firearm by a Felon as an Unenumerated Underlying Felony The State did not expressly charge defendant with felony murder according to the court’s theory in either its indictment or prosecute under a felony murder theory in its case-in-chief. Moreover, possession of a firearm by a felon has never underlain a felony murder conviction in North Carolina. Accordingly, the trial court’s sua sponte decision to instruct the jury on this novel and unprecedented interpretation of the felony murder statute, under which a self-defense justification is inapplicable, raises an issue of first impression in North Carolina. We begin by considering whether the statute permits this theory of felony murder or categorically forecloses such convictions. We review questions of statutory interpretation de novo. State v. Adams, 285 N.C. App. 379, 393 (2022) (citing State v. Skipper, 214 N.C. App. 556, 557 (2011)). 7  STATE V. JOHNSON Opinion of the Court It is a felony for any convicted felon to “purchase, own, possess, or have” a gun. N.C.G.S. § 14-415.1(a). “ ‘The offense of possession of a firearm by a convicted felon has two essential elements: (1) the defendant has been convicted of a felony, and (2) the defendant subsequently possessed a firearm.’ ” State v. Mercer, 373 N.C. 459, 462 (2020) (quoting State v. Floyd, 369 N.C. 329, 333 (2016)). Defendant admitted both elements at trial pursuant to his defense to first-degree murder. The jury found him guilty on this charge. Felony murder is defined in the relevant statute as a murder which was: committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon. N.C.G.S. § 14-17(a). Underlying felonies not expressly included must fall under the catch-all: “or other felony committed or attempted with the use of a deadly weapon.” To interpret an individual statutory provision, “we look first to the language of the statute itself.” Walker v. Bd. of Trs. of N.C. Loc. Gov’tal Emps. Ret. Sys., 348 N.C. 63, 65 (1998) (quoting Hieb v. Lowery, 344 N.C. 403, 409 (1996)). If statutory language is unambiguous, we read it in accordance with its plain meaning. State v. Steen, 376 N.C. 469, 480 (2020) (citation omitted). Where the language is ambiguous or without a clear meaning, “legislative intent controls the interpretation of a criminal statute.” State v. Jones, 358 N.C. 473, 478 (2004) (citing State v. Hearst, 356 N.C. 132, 136–37 (2002)). To interpret ambiguous statutes, we use “judicial 8  STATE V. JOHNSON Opinion of the Court construction” to “ascertain the legislative will” and carry it out “to the fullest extent.” Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209 (1990) (citations omitted). The North Carolina Supreme Court has already held that this statute’s language is clear and unambiguous. See State v. Wall, 304 N.C. 609, 614 (1982). That holding controls and the statute’s plain meaning is straightforward, setting forth two categories. The first encompasses murders committed as the defendant perpetrates or attempts any of the enumerated felonies. Id. The second encompasses murders occurring during the commission or attempt of an unspecified felony in which the defendant uses a deadly weapon. Id. The question here is whether the second category encompasses possession of a firearm by a felon among the unspecified “other” felonies perpetrated with the “use of a deadly weapon.” But the fit between this offense and this category is neither obvious nor intuitive. The language plainly envisions a defendant who first possesses some deadly weapon and then uses it to bring about some “other felony.”1 1 Felonious child abuse may underlie a felony murder charge where “the killing took place while the accused was perpetrating or attempting to perpetrate felonious child abuse with the use of a deadly weapon.” State v. Pierce, 346 N.C. 471, 493 (1997) (citing N.C.G.S. § 14-17). Indeed, a defendant who, as a convicted felon, illegally possesses a firearm and is therefore already guilty of a first felony, properly faces a felony murder charge where he commits some second unenumerated felony, such as the sale of cocaine, if (1) he brings a deadly weapon to the sale and (2) during the transaction, someone is killed, either by the illegally-possessed firearm, another deadly weapon, or through some other means. See, e.g., State v. Squires, 357 N.C. 529, 534–36 (2003); State v. Freeman, 202 N.C. App. 740, 743–44 (2010). Further, if a victim dies because the felon used some other deadly weapon, such as a utility knife, to take felonious possession of his victim’s firearm, the felon is guilty of felony murder under the statute’s first category, with robbery as the underlying felony, as well as possession of a firearm by a felon. 9  STATE V. JOHNSON Opinion of the Court Here, it is undisputed that defendant committed a felony by possessing the firearm as a felon. It is also undisputed that defendant used that deadly weapon to shoot Ms. Kernny. However, defendant did not use the firearm in furtherance of any other felony that could serve as a predicate; apart from the first-degree premeditated murder charge, defendant was not charged with any felony as to the use of the firearm. Nor did defendant use the firearm in furtherance of his felonious possession of the firearm.2 However, we cannot agree with defendant that the felony murder statute categorically excludes this possession offense from its “catch-all” category. It may feasibly underlie a felony murder charge, but only under a highly specific, unusual, and narrow set of facts. For example, imagine the following hypothetical scenario: Mr. A, a convicted felon, illegally possesses a firearm. Mr. B sneaks up behind Mr. A to take the firearm. Mr. A and Mr. B begin to scuffle, and Mr. A manages to pull the trigger and shoot Mr. B, in order to re-establish felonious possession of the firearm. Mr. B later dies from his wounds. Under such a set of facts, it may be legally sound to consider the possession offense the proper underlying felony. Absent other felonious objectives, 2 Unlawful use of the firearm is not an element of possession of a firearm by a felon; that crime is complete when the defendant possesses the firearm. See Mercer, 373 N.C. at 462; N.C.G.S. § 14- 415.1(a). 10  STATE V. JOHNSON Opinion of the Court Mr. A’s use of the deadly weapon was in furtherance of his felonious possession of the firearm, since he killed Mr. B while taking back the gun. As noted above, there is no analogous precedent in North Carolina. However, the hypothetical represents a plausible set of facts which may fit within the statutory requirements. So long as the facts show some unbroken chain of events between the murder and the defendant’s commission or attempt to commit some felony not specifically named in the statute, with the actual use of a deadly weapon, that felony can properly underlie a felony murder charge, and is encompassed by the statute’s “other felony” catch-all category. This is so regardless of whether the felony typically requires the use of a deadly weapon. State v. Freeman, 202 N.C. App. 740, 743 (2010), disc. rev. improvidently allowed, 365 N.C. 4 (2011). It is so regardless of whether the felony is inherently dangerous. State v. Davis, 305 N.C. 400, 423 (1982). And it is so even if the deadly weapon is not physically used in the felony’s commission. State v. Fields, 315 N.C. 191, 199 (1985) (“If the defendant has brought the weapon along, he has at least a psychological use for it: it may bolster his confidence, steel his nerve, allay fears of his apprehension.”). Even where a defendant’s knowingly felonious possession of a firearm is uninterrupted throughout a sequence of events including a killing, his mere possession of that weapon cannot properly underlie a felony murder charge unless there is some other interrelated felony in which he uses the firearm. However, the charge may proceed where the State introduces sufficient evidence that the killing 11  STATE V. JOHNSON Opinion of the Court occurred where the defendant used a deadly weapon to establish or assume felonious possession of his firearm and the elements of robbery are not met, as when, for example, the victim was attempting to interrupt his felonious possession. Under the statute’s plain meaning, such a charge may arise out of this type of evidence, but whether the State can prove felony murder under this particular theory is a question for the jury. Nevertheless, the controlling case law requires us to reject defendant’s categorical argument. B. The Jury Charge Violated Defendant’s Constitutional Right to Due Process Although we have concluded that possession of a firearm by a felon is not categorically excluded as a predicate for felony murder, the trial court’s failure to put defendant on notice prior to the charge conference violated defendant’s right to due process. A criminal defendant’s right to due process in state court is ensured by both the United States and North Carolina Constitutions. See U.S. Const. Amends. V, XIV; N.C. Const. Art. I, § 19. “In all criminal prosecutions the accused must be informed of the nature and cause of the accusation against him” and there can be no “due process of law where the accused is not thus informed.” State v. Hunt, 357 N.C. 257, 271 (2003) (quoting Hodgson v. Vermont, 168 U.S. 262, 272 (1897)). The notice must “acquaint him with the essential particulars of the offen[s]e, so that he may appear in court prepared to meet every feature of the accusation against him.” Id. A criminal defendant must be “allowed a reasonable time and opportunity to 12  STATE V. JOHNSON Opinion of the Court investigate and produce competent evidence, if he can, in defense of the crime with which he stands charged and to confront his accusers with other testimony.” State v. Baldwin, 276 N.C. 690, 698 (1970) (citations omitted). For these reasons, “[t]he purpose of a bill of indictment is to put a defendant on such notice that he is reasonably certain of the crime of which he is accused.” State v. McGriff, 151 N.C. App. 631, 634 (2002) (citation omitted). An indictment must assert “facts supporting every element of a criminal offense and the defendant’s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is subject of the accusation.” N.C.G.S. § 15A- 924(a)(5). The elements must be alleged such that the indictment “(1) identifies the offense; (2) protects against double jeopardy; (3) enables the defendant to prepare for trial; and (4) supports a judgment on conviction.” State v. Thomas, 153 N.C. App. 326, 335 (2002) (citation omitted). Crucially, “[i]t is a rule of universal observance in the administration of criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment.” State v. Jackson, 218 N.C. 373, 376 (1940). “The failure of the allegations to conform to the equivalent material aspects of the jury charge represents a fatal variance, and renders the indictment insufficient to support that resulting conviction.” State v. Williams, 318 N.C. 624, 631 (1986) (citation omitted). Further, “where the indictment for a crime alleges a theory of the crime, the State is held to proof of that theory and the jury is only allowed to convict 13  STATE V. JOHNSON Opinion of the Court on that theory.” State v. Shearin, 170 N.C. App. 222, 231 (2005) (quotes and citation omitted). Bills of indictment may not be amended. N.C.G.S. § 15A-923(e). This provision forbids changes substantially altering the charge the indictment sets forth. State v. Reavis, 287 N.C. App. 322 (2022). To determine whether substantial alteration occurred, the court must consider the multiple purposes served by indictments, the primary one being to enable the accused to prepare for trial. State v. Silas, 360 N.C. 377, 379–80 (2006). “A change in an indictment does not constitute an amendment where the variance was inadvertent and defendant was neither misled nor surprised as to the nature of the charges.” State v. Hill, 185 N.C. App. 216, 224 (Tyson, J., dissenting), writ allowed, 361 N.C. 699 (2007), rev’d, 362 N.C. 169 (2008). Therefore, whether defendant here received due process turns on whether the sua sponte jury charge on felony murder substantially altered his bill of indictment, such that defendant was either “misled” or “surprised” by the revised charge. 1. Defendant’s Indictment and the Court’s Harbison Inquiry Here, the indictments charged two crimes: murder and possession of a firearm by a convicted felon. The first charged that defendant “unlawfully, willfully, and feloniously did of malice aforethought kill and murder” Ms. Kernny “in violation of N.C.G.S. § 14-17.” The second charged that he was found guilty of a felony in 2020 and later “unlawfully, willfully, and feloniously did possess and have in the 14  STATE V. JOHNSON Opinion of the Court defendant’s control a semi-automatic pistol, which is a firearm . . . in violation of N.C.G.S. § 14-415.1.” The State argues that this was “sufficient to charge first-degree murder without specifically alleging premeditation and deliberation or felony murder.” This is correct. See State v. Garcia, 358 N.C. 382, 388 (2004) (“[A] short-form indictment is sufficient to charge first-degree murder on the basis of felony murder committed during an attempted rape.”). In principle, it would have been lawful for the State to proceed under either theory at trial, and the court’s decision to instruct on felony murder does not in itself substantially alter the indictment. But due process jurisprudence illustrates that practice inevitably falls short of principle, obliging the constant vigilance of appellate courts. Due process is “bound to fall differently at different times and differently at the same time through different judges[,]” but “[t]he vague contours of the Due Process Clause do not leave judges at large.” Rochin v. California, 342 U.S. 165, 170 (1952). In the instant case, the trial transcript illustrates that defendant was “misled [and] surprised as to the nature of the charge[ ].” On the first day of trial, the court conducted the standard inquiry required by the Due Process Clause and State v. Harbison, 315 N.C. 175 (1985) in light of defendant’s admissions and his intention to argue self-defense. “A plea decision must be made exclusively by the defendant.” Harbison, 315 N.C. at 180. “Harbison applies when defense counsel concedes defendant’s guilt to 15  STATE V. JOHNSON Opinion of the Court either the charged offense or a lesser included offense.” State v. Alvarez, 168 N.C. App. 487, 501 (2005) (citing State v. Wiley, 355 N.C. 592, 619–20 (2002)). Any strategic concession to guilt may occur only with the defendant’s consent, and due process requires that this consent be given voluntarily and knowingly, on the record, and after a full appraisal of the consequences. State v. Perez, 135 N.C. App. 543, 547 (1999) (citations omitted). Accordingly, “the trial court must be satisfied that, prior to any admissions of guilt at trial[,]” the defendant offers the admission “aware of the potential consequences of his decision.” State v. Maready, 205 N.C. App. 1, 7, writ denied, review denied, 364 N.C. 329 (2010). Counsel should also ensure the record reflects whether the defendant’s consent is contingent upon presentation of a certain defense. State v. Berry, 356 N.C. 490, 514–15 (2002). Defendant expressly understood that his concessions were essential to the strategic defense against the State’s first-degree murder theory. During the Harbison inquiry, defendant’s counsel agreed that she would “admit certain elements of the offense of first-degree murder in connection with [the] strategy to proceed on self-defense or defense of others theory[.]” Defendant responded affirmatively to the question: “If your counsel tells the jury that your actions, in fact, caused the death of this victim, she would be admitting one of the elements of the offense of first-degree murder, and that would relieve the State of its obligation to prove that element beyond a reasonable doubt. Do you understand?” He agreed that he had discussed the strategy and consented to the admission “of those things consistent with the 16  STATE V. JOHNSON Opinion of the Court defense of self-defense in this case, for example, the fact that your actions, in fact, caused the death of this victim in this case.” Moreover, on the third day of trial, the court conducted another inquiry to ensure defendant understood the consequences of his stipulation to possession of a firearm by a felon. Judge Ridgeway explained: [As to] the offense of possession of a firearm by a felon, it is the State’s burden to prove each element of that offense beyond a reasonable doubt. You can stipulate to certain of those elements, if you wish, for strategic purposes . . . [B]y so doing, you do relieve the State of its burden to prove each of the elements that you’ve stipulated to[.] Defendant also understood the consequences of this stipulation. In sum, the defense admitted that defendant was a felon, that he possessed the firearm, and that he used the firearm, causing Ms. Kernny’s death. These admissions were indeed “consistent with the defense of self-defense” and, on these facts, essential to his defense against the State’s first-degree murder theory. They were knowing and voluntary admissions to every element of the charged possession offense and some elements of first-degree murder. The trial court even noted the “strategic purposes” of the stipulation. However, the court accepted his admissions without providing notice of or opportunity to prepare for the consequences that would later arise from them. The court did not declare its sua sponte decision to instruct the jury on felony murder, with firearm possession as the underlying offense, until the charge conference. 17  STATE V. JOHNSON Opinion of the Court Crucially, Judge Ridgeway’s decision followed the defense’s extensive impeachment of the State’s key witness, Ms. Ratliff, who testified to a version of events in stark contrast to her previous police interview and the testimony of other witnesses. The defense further impeached Ms. Ratliff’s credibility in its cross-examination of Detective Silvius, who testified that he “had to help her along to get her focused on what [he was] trying to ask,” that she had been “vague about what happened” and that it had been “difficult to make sense of her timeline . . . probably due to her impairment.” He also affirmed on cross-examination that he knew, following his interviews with neighbors, family, and friends, that “it was pretty typical for her to be intoxicated.” The defense also presented sufficient evidence and testimony to require instructions on self-defense and diminished capacity. The jury later concluded that the State failed to prove defendant’s guilt as to first-degree murder based on malice, premeditation, and deliberation, and the jury acquitted him under that theory. Nevertheless, to convict defendant for felony murder below, the court required the State to prove only (1) that “the defendant committed the felony offense of possession of a firearm by a convicted felon,” (2) “that while committing the offense of possession of a firearm by a convicted felon and with the use of said firearm, the defendant killed the victim,” and (3) “that the defendant’s act was the proximate cause of the victim’s death[,]” defining proximate cause as “a cause without which the victim’s death would not have occurred.” Furthermore, as we discuss in detail below, 18  STATE V. JOHNSON Opinion of the Court the State is not required to overcome a self-defense justification to prove felony murder. State v. Juarez, 369 N.C. 351, 354 (2016). In the instruction quoted above as to the third element, the court did not clarify whether the “act” in question was possessing the gun or pulling its trigger. The latter reading was both natural in context and consistent with the law of felony murder. As previously discussed, North Carolina is not a proximate cause state, insofar as the underlying felony is not the “but for” cause of the death. But this does not mean that the felony murder analysis is entirely free of considerations of proximate cause. Indeed, [a] killing is committed in the perpetration or attempted perpetration of a felony for purposes of the felony murder rule where there is no break in the chain of events leading from the initial felony to the act causing death, so that the homicide is part of a series of incidents which form one continuous transaction. State v. Hutchins, 303 N.C. 321, 325 (1981) (emphasis added). Accordingly, felony murder requires the State to show a proximately causal relationship only between some act that occurs and causes the death, which are both encompassed within a larger continuous transaction that also includes the defendant’s underlying felonious conduct. Therefore, defendant’s strategic admissions, standing alone, were sufficient to prove beyond a reasonable doubt that defendant was guilty under the court’s theory of felony murder. No reasonable jury following the court’s instruction would have been able acquit him under this theory. 19  STATE V. JOHNSON Opinion of the Court The court’s sua sponte charge instantly transformed defendant’s successful defense against the first-degree murder case that the State prosecuted at trial into a de facto admission to every element of felony murder. Defendant admitted to this novel theory of felony murder before either he or the State knew such a felony murder charge was forthcoming, or that his admitted possession offense could constitute its underlying felony. The court retroactively granted the State an illusory burden of proof and made conviction a foregone conclusion, even though defendant had no knowledge of these consequences or any ability to prepare for a trial from which such consequences could result. The dissent claims we hold that the trial court’s Harbison inquiry was inadequate. This is not our holding. The court’s Harbison inquiries are not the matter at issue in this appeal, and Defendant made no argument based on either Harbison or an ineffective assistance of counsel claim. We address due process concerns of a different kind. Instead, we have asked whether the court’s sua sponte amendment to the bill of indictment after the close of evidence constituted a substantial alteration because it was not “inadvertent” and either “misled” or “surprised” defendant. The proper place to look for answers is the trial transcript, where the obvious sections of importance are the court’s Harbison inquiries. Those inquiries clearly show what Defendant knew about the charges against him, why he made strategic admissions, and what he understood about the consequences. In doing so, we touch on the case 20  STATE V. JOHNSON Opinion of the Court law underlying Harbison inquiries, but not to ask whether those inquiries were conducted properly at the time. We discuss Harbison because the court’s inquiries and defendant’s responses were highly relevant and helpful in our analysis of the Due Process issues. Accordingly, our conclusion here is not, as the dissent states, that the court’s Harbison inquiry was erroneous because the court and defense counsel failed to tell defendant he would be admitting to every element of the court’s future sua sponte felony murder charge. By turning to Harbison and ineffective assistance of counsel, the dissent takes our holding and reads it backwards. We instead conclude that the jury charge was erroneous because Judge Ridgeway charged a novel felony murder charge sua sponte at the close of evidence, despite knowing, both from his earlier Harbison inquiries and the trial as a whole, that by substantially altering the bill of indictment in this way, he would blindside defendant and undermine the primary reason any defendant is entitled to an indictment in the first place: to prepare a defense strategy at trial. As we discussed above, the court and defendant both understood what his defense strategy was and that his admissions absolved the State of proving the facts admitted. But if in making those admissions, he fully admitted to felony murder and not just possession of a firearm by a felon, the State had no obligation to prove his guilt on each element of felony murder beyond a reasonable doubt, and there was no need to submit the felony murder question to a jury. 21  STATE V. JOHNSON Opinion of the Court Moreover, the dissent relies on case law that undermines its own argument, namely United States v. Cronic, 466 U.S. 648, 548 (1984). Therein, the Supreme Court held that a defendant is prejudiced by ineffective assistance only in infrequent and narrow circumstances “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658. Such circumstances exist when “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Id. at 659–61. The dissent affirms that we must consider IAC claims under the Sixth and Fourteenth Amendments in North Carolina under both prongs of Strickland v. Washington, 466 U.S. 668 (1984) unless a narrow Cronic exception applies. However, defendant makes no claim of ineffective assistance of counsel under the Sixth and Fourteenth Amendments, and the Cronic exception would have been beside the point if he did so. This is because the defense counsel did indeed meaningfully test the prosecution’s case: counsel argued self-defense and the jury acquitted defendant of first-degree murder. But the prosecution never presented a felony murder case, and one cannot argue that defense counsel “entirely fail[ed] to subject” a case the State never presented “to meaningful adversarial testing.” Defendant challenged his conviction because the court charged