More on Units of Prosecution

Author’s Note: The Court of Appeals withdrew the State v. Watlington decision—on which this post is partially based—on April 7, 2025 and reissued the decision on April 16, 2025. The relevant section of this post has been modified from its original. It has long been held that the allowable unit of prosecution for an offense is within the discretion of the legislature. See, e.g., Bell v. United States, 349 U.S. 81 (1955).  When the legislature does not clearly express legislative intent, the court must determine the allowable unit of prosecution. State v. Smith, 323 N.C. 439 (1988). North Carolina courts have resolved issues related to units of prosecution in some contexts—including kidnapping, possession of firearms, and theft crimes—while there are questions that remain unanswered in other contexts. Some answers are clearer and more direct than others. I previously wrote a bulletin reviewing case law on permissible units of prosecution for certain offenses against the person, possession offenses, and theft offenses. Since then, the courts have specified units of prosecution for a few more offenses. This post provides more insight into those offenses and reviews the rule of lenity in navigating the unresolved. New Developments Recently, there have been two cases that have covered allowable units of prosecution for specific offenses. One is State v. Lancaster, 908 S.E.2d 879 (2024), on criminal contempt under G.S. 5A-11. The other is State v. Watlington, ___ S.E.2d ___ (2025) on hit and run under G.S. 20-166 and accessory after the fact under G.S. 14-7. Criminal contempt The defendant in Lancaster, dissatisfied with the [...]