IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-1063
Filed 2 September 2026
Pasquotank County, No. 22CR050243-690
STATE OF NORTH CAROLINA
v.
LESSELLE CORNELIUS SPENCER
Appeal by Defendant from judgment entered 28 January 2025 by Judge Jeffery
B. Foster in Pasquotank County Superior Court. Heard in the Court of Appeals 11
August 2026.
Attorney General Jeff Jackson, by Special Deputy Attorney General I. Faison
Hicks, for the State-Appellee.
The Sweet Law Firm PLLC, by Kaelyn N. Sweet, for Defendant-Appellant.
COLLINS, Judge.
Defendant, Lesselle Spencer, appeals from judgment entered upon a jury’s
verdict of guilty of first-degree murder. Defendant argues that the trial court plainly
erred by failing to instruct the jury on second-degree murder and by instructing the
jury on both lying in wait and flight. We find no error, much less plain error.
I. Background
Defendant was indicted for first-degree murder, and his case came on for trial
in January 2025. The evidence at trial tended to show the following:
STATE V. SPENCER
Opinion of the Court
In April 2022, Defendant lived with his girlfriend, Holly Mangus, in her
apartment. The apartment was located twenty feet from a Big Lots where Holly
worked as an associate manager. Defendant would often “hang around the
apartment complex” and went to Holly’s workplace “all the time.” Defendant was
familiar with the area and “pretty much everybody in the store[.]”
On 4 April 2022, Big Lots terminated Holly for violating company policy.
Defendant, Holly, and a friend drove to the beach between 5:00 pm and 5:30 pm. On
the way to the beach, the group rolled marijuana blunts, and Defendant purchased a
bottle of liquor. The group smoked the blunts at the beach and left to go back to
Holly’s apartment between 8:00 pm and 8:30 pm.
When they returned to Holly’s apartment, the lights in Big Lots were on and
cars were in the parking lot. Holly began cleaning the apartment, and Defendant
went into the bedroom and bathroom. Holly did not see Defendant for approximately
45 minutes after they arrived at the apartment. Holly next saw Defendant when he
approached her while putting on a white hoodie to tell her that he was leaving to buy
beer. Defendant left the apartment between 9:50 pm and 10:00 pm. He called Holly
twice while he was out, once to tell her that there were police outside and he could
not get into Food Lion, and then to tell her that he had entered Food Lion. Defendant
returned to the apartment approximately twenty minutes after he left.
During the time Defendant was out of Holly’s sight but before he told her he
was leaving to buy beer, Cassandra Maher, the Big Lots manager, and Kevin
-2-STATE V. SPENCER
Opinion of the Court
Chambers, a Big Lots employee, closed the store and walked towards their cars at
9:30 pm. Kevin’s wife, Lisa, was waiting in her car to pick him up. Cassandra saw a
man walking towards her from Holly’s apartment building wearing a COVID mask
and a tan hoodie. After entering her car, Cassandra heard a “banging” on the driver’s
side. She “floored it to get out of there” and drove to a nearby Chinese restaurant
where she called 911.
Lisa heard the noise from the altercation between Cassandra and her assailant
and ducked down in her car. She heard Kevin exchange words with someone and saw
someone chasing Kevin around the parking lot. She heard Kevin say, “well, you got
me now, what you going to do, you going to shoot me” and then heard a bang. Lisa
called 911 at 9:39 pm and opened the driver’s side door of her car. Kevin’s assailant
was gone, and Kevin was lying on the ground with a gunshot wound in his chest.
EMS pronounced Kevin dead in the Big Lots parking lot at 10:07 pm.
Security footage from Holly’s apartment building and Food Lion and
information from Big Lots and Food Lion employees led law enforcement to
Defendant. Holly identified Defendant in the footage as both the man in the face
mask and tan hoodie outside her apartment building and the man in the white hoodie
entering Food Lion based on his clothes, gait, and build. When identifying him as the
man in the tan hoodie, she noted that “this is normally how he would stand or symbol
when he has had a lot to drink.”
Defendant was arrested and transported to Albemarle County Jail for pretrial
-3-STATE V. SPENCER
Opinion of the Court
confinement. While incarcerated, Defendant told inmate Maurice Green that he
became upset when Big Lots fired his girlfriend, shot a man with a nine-millimeter
gun while two women were nearby, and “got rid of” the gun and the clothing he wore
during the shooting. He said that his “initial intention[]” when he went to Big Lots
that night was to “kill everybody.” He also told Green that he ran from the scene and
changed from a dark hoodie to a “white color.”
Defendant told inmate George Harris, an acquaintance of thirty years, that he
“went over to Big Lots, . . . had on a dark-colored hoodie with his face tied up,” and
“got into it with the male that worked there because he had fired his girlfriend[.]” He
further told Harris that he used a nine-millimeter gun that he later sold to another
tenant in his apartment complex, and “he had on a dark-colored hoodie but they had
never seen him change hoodies[.]”
A jury found Defendant guilty of first-degree murder by both premeditation
and deliberation and by lying in wait. The trial court sentenced Defendant
accordingly. Defendant timely appealed.
II. Discussion
Defendant makes three arguments on appeal, all of which allege plain error
based on jury instructions that Defendant argues should or should not have been
included by the trial court.
“For error to constitute plain error, a defendant must demonstrate that a
fundamental error occurred at trial. To show that an error was fundamental, a
-4-STATE V. SPENCER
Opinion of the Court
defendant must establish prejudice – that, after examination of the entire record, the
error had a probable impact on the jury’s finding that the defendant was guilty.”
State v. Lawrence, 365 N.C. 506, 518 (2012) (quotation marks and citation omitted).
“Moreover, because plain error is to be applied cautiously and only in the exceptional
case, the error will often be one that seriously affects the fairness, integrity or public
reputation of judicial proceedings[.]” Id. (cleaned up).
A. Second-Degree Murder Jury Instruction
Defendant argues that the trial court plainly erred by failing to instruct the
jury on the lesser-included offense of second-degree murder where the State
presented contradictory evidence that Defendant was intoxicated at the time of the
shooting.
“[T]he trial court must submit and instruct the jury on a lesser included offense
when, and only when, there is evidence from which the jury could find that defendant
committed the lesser included offense.” State v. Boykin, 310 N.C. 118, 121 (1984).
“Where the State’s evidence is positive as to each element of the offense charged and
there is no contradictory evidence relating to any element,” lesser included
instructions are not required. State v. Millsaps, 356 N.C. 556, 562 (2002). “When
determining whether there is sufficient evidence for submission of a lesser included
offense to the jury, we view the evidence in the light most favorable to the defendant.”
State v. Ryder, 196 N.C. App. 56, 64 (2009).
“First-degree murder is the intentional and unlawful killing of a human being
-5-STATE V. SPENCER
Opinion of the Court
with malice and with premeditation and deliberation.” State v. Leazer, 353 N.C. 234,
237 (2000). “Murder in the second degree is the unlawful killing of a human being
with malice but without premeditation and deliberation.” Id. “Second-degree murder
is a lesser included offense of first-degree murder. Id. “If the [S]tate’s evidence
establishes each and every element of first-degree murder and there is no evidence to
negate these elements, it is proper for the trial court to exclude second-degree murder
from the jury’s consideration.” Id.
To negate the specific intent element of first-degree murder, “the evidence
must show that at the time of the killing the defendant’s mind and reason were so
completely intoxicated and overthrown as to render him utterly incapable of forming
a deliberate and premeditated purpose to kill.” State v. Strickland, 321 N.C. 31, 41
(1987) (cleaned up).
Here, the evidence indicates that Defendant formed and executed a plan to
conceal his identity and deceive Holly about his whereabouts on the night of the
murder. Defendant admitted to having the intention to “kill everybody” and the
forethought to ensure he was not seen leaving the apartment when he went to
perpetrate the murder and change his clothes when he returned. Under Millsaps,
the State’s evidence was positive and uncontradicted as to the specific intent element.
356 N.C. at 562.
In contrast, the evidence showed only that Defendant purchased liquor
between 5:00 pm and 5:30 pm, Defendant smoked marijuana between 7:00 pm and
-6-STATE V. SPENCER
Opinion of the Court
8:30 pm, and Holly testified that “this is normally how [Defendant] would stand or
symbol when he has had a lot to drink” when identifying Defendant as the assailant
in the tan hoodie. This evidence was insufficient to show that Defendant was so
intoxicated at the time of the shooting that he was incapable of forming the intent
necessary for first degree murder.
Viewing the evidence in the light most favorable to Defendant, there is no
rational basis on which a jury could find that Defendant’s intoxication rendered him
“utterly incapable of forming a deliberate and premeditated purpose to kill.”
Strickland, 321 N.C. at 41. Accordingly, the trial court did not err, much less plainly
err, by failing to instruct the jury on the lesser-included offense of second-degree
murder.
B. Lying In Wait Jury Instruction
Defendant next argues that the trial court plainly erred by instructing the jury
on lying in wait because Defendant did not attempt to conceal his identity when
approaching Cassandra and Kevin or law enforcement outside Food Lion.
A jury instruction on first-degree murder by lying in wait is appropriate when
there is sufficient evidence in the record to support that specific theory of guilt. See
State v. Lynch, 327 N.C. 210, 218-19 (1990). “Murder perpetrated by lying in wait
refers to a killing where the assassin has stationed himself or is lying in ambush for
a private attack on his victim.” State v. Leroux, 326 N.C. 368, 375 (1990) (quotation
marks omitted). “The assassin need not be concealed, nor need the victim be unaware
-7-STATE V. SPENCER
Opinion of the Court
of his presence.” Id. “If one places himself in a position to make a private attack
upon his victim and assails him at a time when the victim does not know of the
assassin’s presence or, if he does know, is not aware of his purpose to kill him, the
killing would constitute a murder perpetrated by lying in wait.” Id.
Defendant admitted to having the intention to “kill everybody” and the
forethought to ensure he was not seen leaving the apartment when he went to
perpetrate the murder and to change his clothes when he returned. Furthermore,
the evidence showed that Defendant knew the Big Lots’ schedule, knew Holly’s
schedule, was familiar with the Big Lots employees, and was familiar with the area
surrounding the apartments and Big Lots. This evidence supports a reasonable
inference that Defendant stationed himself to make a private attack because he knew
employees would be leaving the store at the time of the murder and the parking lot
would be largely empty, and he waited to approach Cassandra and Kevin after they
left the store. This evidence is sufficient to support a jury instruction on lying in wait.
Accordingly, the trial court did not err, much less plainly err, by instructing the jury
on lying in wait.
C. Flight Jury Instruction
Defendant finally argues that the trial court plainly erred by instructing the
jury on flight.
A jury instruction on flight is appropriate when “there is some evidence in the
record reasonably supporting the theory that defendant fled after commission of the
-8-STATE V. SPENCER
Opinion of the Court
crime charged.” State v. Levan, 326 N.C. 155, 164-65 (1990). The relevant inquiry is
“whether there is evidence that defendant left the scene of the murder and took steps
to avoid apprehension.” Id. at 165 (holding that a jury instruction on flight was not
error where the defendant “open[ly] and conspicuous[ly] return[ed] to his home” and
approached “five law enforcement officers within forty-eight hours of” the murder
when he also attempted to hide the body and remove fingerprints from the murder
weapon).
Here, Defendant openly and conspicuously returned to Holly’s apartment after
the shooting and later went to Food Lion where he approached law enforcement.
Defendant also deceived Holly about his whereabouts, changed clothes before going
to Food Lion, and disposed of the murder weapon. Thus, there was sufficient evidence
to support a jury instruction on flight. Accordingly, the trial court did not err, much
less plainly err, by instructing the jury on flight.
III. Conclusion
Having examined the evidence in the light most favorable to Defendant, we
hold that Defendant received a fair trial free of error.
NO ERROR.
Judges STROUD and GRIFFIN concur.
-9-