When a defendant introduces evidence at trial showing that the State has failed to prove some element of the crime, the strategy is sometimes described as a failure of proof or “negating” defense. Mistake of fact is one such negating defense. Mistake of fact offers a defense if it negates a mental state required to establish an element of the crime. State v. Breathette, ___ N.C. App. ___, 690 S.E.2d 1, 4 (2010). For example, mistake of fact is a defense to larceny if the defendant establishes that he or she took the property under a reasonable but mistaken belief that he or she was the lawful possessor of the property. There are numerous cases on point. One is State v. Lamson, 75 N.C. App. 132, 135-36 (1985), a burglary case in which the court held that the trial court erred by not giving an instruction on mistake of fact when there was evidence that the defendant thought he was entering a house where his friend was visiting. Another is State v. Walker, 35 N.C. App. 182, 186-87 (1978), in which the court held that the trial court erred by not giving an instruction on mistake of fact when the defendant and his son mistakenly abducted a child believed to be the defendant’s granddaughter. There are, however, limitations on this defense. Most significantly, when the elements of the crime do not require the defendant to know the fact that he or she was mistaken about, mistake of fact is no defense. [...]
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