Constitutional protection against double jeopardy is understood to extend no further than the Fifth Amendment requires. Two recent cases from the Court of Appeals, however, seem to find greater double jeopardy protection under state law. In State v. Broadway, No. COA25-1159 (N.C. Ct. App. July 1, 2026), the court ruled a defendant could not be sentenced for two different assaults based on the same conduct. In State v. Sandi, No. COA25-430 (N.C. Ct. App. July 1, 2026), the court recognized a kidnapping conviction requires evidence of restraint beyond that inherent in another felony. This post considers the double jeopardy protections at work in Broadway and Sandi.
Double Jeopardy in North Carolina
The North Carolina Constitution includes no double jeopardy provision. State v. Rambert, 341 N.C. 173, 175 n.1 (1995). Double jeopardy is prohibited by the state constitution in the form of the law of the land clause. State v. Brunson, 327 N.C. 244, 247 (1990). This protection is construed to be no broader than that afforded by the double jeopardy clause of the Fifth Amendment. Id. at 249; State v. Gilbert, 139 N.C. App. 657, 666 (2000). By its plain terms, the Fifth Amendment protects a person from being twice put in jeopardy for the same offense. U.S. Const. Amend. V.
The defendant in State v. Ezell, 159 N.C. App. 103 (2003), was convicted and sentenced for assault with a deadly weapon with intent to kill inflicting serious injury and assault inflicting serious bodily injury. The offenses have disparate elements, and so are not the same offense for purposes of the Fifth Amendment. See State v. Hannah, 149 N.C. App. 713, 719 (2002). Nevertheless, the Court of Appeals in Ezell said it was not bound by an “analysis of elements.” Ezell, 159 N.C. App. at 109. Noting that G.S. 14-32.4 (assault inflicting serious bodily injury) applies unless the conduct is covered under some other provision of law providing greater punishment, the court said that a defendant may not be convicted and sentenced for assault with a deadly weapon with intent to kill inflicting serious injury and assault inflicting serious bodily injury for the same conduct “without violating the double jeopardy provisions of the United States and North Carolina constitutions.” Id. at 111. Significantly, the North Carolina Supreme Court has since reframed the sentencing issue as one of legislative intent (preserved for appeal by operation of law), declining to address any double jeopardy issue not raised and ruled on below. See State v. Davis, 364 N.C. 297, 305 (2010).
In State v. Fulcher, 294 N.C. 503 (1978), the defendant was convicted and sentenced for kidnapping and the crime against nature. The offenses have disparate elements, and so are not the same offense for purposes of the Fifth Amendment. See State v. Banks, 295 N.C. 399, 406 (1978). Nevertheless, the North Carolina Supreme Court noted in Fulcher that certain felonies cannot be committed without some restraint of the victim. It concluded that the legislature did not intend to make a restraint that is an inherent feature of another felony also qualify as kidnapping under G.S. 14-39 so as to permit a defendant to be convicted and punished for both. “To hold otherwise,” it said, “would violate the constitutional prohibition against double jeopardy.” Id. at 523. Significantly, the Supreme Court has since reframed the issue purely as one of legislative intent, though the double jeopardy rationale is still cited. See State v. Beatty, 347 N.C. 555, 559 (1998).
Recent Applications of Double Jeopardy
The defendant in State v. Broadway, No. COA25-1159 (N.C. Ct. App. July 1, 2026), attacked his girlfriend, strangling her until she lost consciousness. The extent of the victim’s injuries and the discovery of a bloody rifle in the bathroom suggested that the defendant assaulted the victim while she was unconscious. The defendant was convicted and sentenced for assault with a deadly weapon with intent to kill inflicting serious injury and assault inflicting serious bodily injury. Before the Court of Appeals, the defendant argued the double jeopardy clause was violated by his being sentenced for both assaults based on the same conduct. The Court of Appeals agreed, stating that assault inflicting serious bodily injury “merges” with assault with a deadly weapon with intent to kill inflicting serious bodily injury “under the double jeopardy clause” because G.S. 14-32.2 contains a some-other-provision-of-law clause. Broadway, Slip Op. at 15. Accordingly, the Court of Appeals arrested judgment on the lesser offense and remanded for resentencing. Id. at 17.
The defendant in State v. Sandi, No. COA25-430 (N.C. Ct. App. July 1, 2026), trapped his wife in their bedroom between a door and a dresser and repeatedly stabbed her with a knife. The defendant was convicted of, among other things, attempted murder, kidnapping, and felony assault. Before the Court of Appeals, the defendant argued there was insufficient evidence of kidnapping because the only evidence of restraint was that inherent in the other felonies. The Court of Appeals labeled this a double jeopardy argument, and found the defendant failed to preserve any such claim below. Sandi, Slip Op. p. 24. Even if he had done so, it said, double jeopardy does not preclude multiple punishment when such punishment is consistent with legislative intent. Id. at 24-25. The Court of Appeals acknowledged the Fulcher rule: kidnapping under G.S. 14-39 requires a showing of restraint beyond that which is an inherent feature of another charged felony. Id. at 25. It insisted, however, that restraint is not an “inherent element” of either attempted murder or felony assault. Id. at 26. In any event, the Court of Appeals also found sufficient evidence of restraint beyond that inherent in the attempted murder and felony assault to support a kidnapping conviction. Id. at 27.
Conclusion
Though the double jeopardy clause of the Fifth Amendment refers to the same offense, the federal courts recognize one scenario where its scope is not so narrow. The U.S. Supreme Court has held that the doctrine of collateral estoppel (i.e., issue preclusion) is embodied in the Fifth Amendment’s guarantee. Ashe v. Swenson, 397 U.S. 436, 445 (1970). Hence, there are cases where a prior trial for one offense may preclude retrial for a different offense, namely when the second trial requires re-litigation of factual issues already resolved in the prior trial. Still, when the issues raised are not identical, subsequent prosecution is not barred. E.g., State v. Tew, 149 N.C. App. 456, 461 (2002).
An uninitiated reader of Broadway and Sandi might be forgiven for thinking that double jeopardy in North Carolina has altogether dispensed with the same offense requirement. Indeed, the defendant in Broadway was sentenced for two offenses that are categorically not the same in law, yet the Court of Appeals awarded relief ostensibly on double jeopardy grounds. Similarly, the Fulcher rule that the Court of Appeals applied in Sandi is articulated in terms of double jeopardy (though the Court of Appeals obviously wrestled with that rationale and its implications in Sandi).
As illustrated above, though the principles at work in Broadway and Sandi were originally rooted in double jeopardy considerations, they eventually found a firmer foundation in legislative intent. If one statute applies unless the conduct is covered by some other provision of law providing greater punishment, then a noncompliant sentence is erroneous – not because it is unconstitutional but because it violates the statute. When a person is charged with more than one statutory offense, prosecutors should be prepared to argue – when appropriate – that the conduct covered is not the same so multiple punishment is not barred. E.g., State v. Tucker, 291 N.C. App. 379, 390 (2023).
Further, as a matter of statutory construction, kidnapping under G.S. 14-39 requires a showing of restraint beyond that inherent in another charged felony. Again, in appropriate cases, prosecutors should be prepared to argue that the conduct covered is not the same, so there is sufficient evidence. E.g., State v. Mosley, No. COA25-53 (N.C. Ct. App. Dec. 3, 2025). As for the place of Broadway and Sandi in the double jeopardy canon, the rules applied in these cases are more comprehensible as non-constitutional strictures without stretching double jeopardy to cover non-identical offenses.
