Variations on State v. Singleton: Surplus Theory in State v. Tate.

After State v. Singleton, 386 N.C. 183 (2024), an indictment is not rendered facially invalid by failure to allege all the elements of a crime. One issue that remains unresolved is the consequence of failure to allege the State’s theory. Two post-Singleton cases decided last year found reversible error when the trial court instructed the jury on a theory not alleged in the indictment. See State v. Wilson, 910 S.E.2d 407 (N.C. Ct. App. Dec. 31, 2024); State v. Little, 296 N.C. App. 424 (2024). More recently, in State v. Tate, No. COA24-450 (N.C. Ct. App. June 18, 2025), the Court of Appeals cited Singleton in support of its conclusion that the trial court did not err by instructing the jury on a theory that was not alleged in the indictment. This post examines the opinion in Tate. A Theory of Conviction For many crimes, a single offense can be proven in more than one way. First-degree murder may be committed by premeditation and deliberation or during the perpetration of a felony. G.S. 14-17; State v. Gillard, 386 N.C. 797, 831 (2024). Kidnapping may be committed by confinement, restraint, or removal, and for various prescribed purposes. G.S. 14-39(a); State v. Lucas, 353 N.C. 568, 588 (2001). Rape may be committed by force and against the will or with an underage victim. G.S. 14-27.21 (forcible); 14-27.24 (statutory); State v. Ross, 249 N.C. App. 672, 678 (2016). As regards the morphology of a crime, the word theory generally refers to the particular avenue [...]