Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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In a case involving a conviction for second-degree murder following a fatal motor vehicle accident, the indictment was sufficient. On appeal the defendant argued that the indictment only charged him with Class B1 second-degree murder, a charge for which he was acquitted, and not the Class B2 version of second-degree murder for which he was convicted. The court disagreed. Under G.S. 15-144, “it is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed).” Here, the indictment alleged that the defendant “unlawfully, willfully, and feloniously and of malice aforethought did kill and murder Derek Lane Miller.” This is sufficient to charge the defendant with second-degree murder as a B2 felony. The defendant however argued that the indictment was insufficient because, by only checking the box labeled “Second Degree” and not checking the box beneath it labeled “Inherently Dangerous Without Regard to Human Life,” the defendant was misled into believing he was not being charged with that form of second degree murder. The court disagreed, stating: “by checking the box indicating that the State was charging ‘Second Degree’ murder, and including in the body of the indictment the necessary elements of second degree murder, the State did everything necessary to inform [the defendant] that the State will seek to prove second degree murder through any of the legal theories the law allows.” Moreover, it noted, the defendant did not show that he was actually misled, and the record indicates that he understood that the State would seek to introduce his prior driving record and argue that his pattern of driving demonstrated that he engaged in an act that is inherently dangerous to human life done recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.
The defendant was charged by arrest warrant with misdemeanor injury to personal property, misdemeanor larceny, and reckless driving after he cut off the end of a truck stop’s air hose, attempted to strike his passenger with it, and then quickly fled with it when confronted by an undercover officer. He was convicted in district court and appealed to superior court. Before trial in superior court, the State moved to amend the charging language to correct the name of the corporate property owner for the injury to personal property and larceny charges. The prosecutor made the amendment on a misdemeanor statement of charges form with no objection from the defendant. The defendant was convicted and appealed. A divided Court of Appeals held that the superior court lacked jurisdiction to try the charges amended through the statement of charges, reasoning that under the language of G.S. 15A-922(e), a statement of charges may be filed after arraignment only if the defendant objects to the State’s original pleading. State v. Capps, ___ N.C. App. ___, 828 S.E.2d 733 (2019). The State appealed and the Supreme Court reversed, reinstating the convictions. The Court held that warrants may be amended at any time when doing so does not materially affect the nature of the charged offense or is otherwise authorized by law. And the State may make the amendment though a statement of charges, because the General Assembly intended statements of charges to be generally treated like amendments. The Court rejected the defendant’s argument that the defendant’s objection to the sufficiency of a warrant is a necessary prerequisite to a post-arraignment statement of charges.
In this Durham County case, defendant appealed his conviction for felony animal cruelty, arguing that (1) the removal of the name of a horse from the indictment rendered it invalid, and (2) the prosecutor’s recitation of caselaw during closing argument represented gross impropriety. The Court of Appeals found no error and affirmed the conviction.
In July of 2016, Durham County Animal Services responded to a report of several deceased horses on the property where defendant kept his horses. On the scene, Animal Services discovered the skeletal remains of three horses and one still-living horse, a chestnut mare, in severely emaciated condition. This horse was initially identified as “Diamond” in the indictment, but the prosecution successfully moved to strike the name from the indictment prior to trial. Defendant was found guilty of felony animal cruelty under N.C.G.S. § 14-360(b) in January 2021.
Reviewing defendant’s first argument on appeal, the Court of Appeals noted that under N.C.G.S. § 15A-923(e) an indictment may not be amended, but “surplus language which ‘in no way change[s] the nature or the degree of the offense charged’ may be stricken from an indictment.” Slip Op. at ¶20, quoting State v. Peele, 16 N.C. App. 227 (1972). The court explained that under N.C.G.S. § 14-360(b), the name of an animal is not considered an essential element of the crime, and applicable precedent established that it was acceptable to identify animals by general descriptions in indictments. Slip Op. at ¶24, citing State v. Credle, 91 N.C. 640 (1884). Because there was only one horse at issue in this case, and striking its name “Diamond” caused no confusion or difficulty for defendant when presenting his defense, the court found no error in striking the horse’s name from the indictment.
The court next considered the prosecutor’s recitation of case law during closing argument. Noting that defense counsel did not object during trial, the court explained that defendant must show the remarks were “so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu,” a heightened standard of review. Slip Op. at ¶27, quoting State v. Jones, 355 N.C. 117 (2002). The court emphasized that “the prosecutor’s statements must have been so improper that they ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Slip Op. at ¶29, quoting Darden v. Wainwright, 477 U.S. 168 (1983). Based upon this high standard for relief, and the substantial evidence admitted at trial supporting defendant’s conviction, the court could not establish that defendant was deprived of a fair trial.
The defendant in this case was charged with sexual activity by a substitute parent under G.S. 14-27.31. The defendant lived at the home of the victim and her mother, and he was the father of the victim’s sister. In 2016, while the victim’s mother was out of the house, the defendant engaged in three different sexual acts with the victim. The victim told her mother, who notified law enforcement, and the defendant was arrested and indicted. The defendant’s first trial ended in a mistrial on two counts, but he was retried and convicted on both. On appeal, the defendant raised two issues.
First, the defendant argued that the trial court erred in allowing the state to amend the indictments by including the words “[a]t the time of the offense, the defendant
was residing in the home with” the victim, contending that this was a substantial alteration of the charge. The appellate court disagreed. The original language used in the indictment adequately alleged that the defendant had assumed the position of a parent in the home of the victim, who was less than 18 years old, and engaged in a sexual act with that person, thereby satisfying all the essential elements of the offense. Since the indictment was already facially valid, and it was not necessary under the statute to allege that the defendant also resided at the home, the amendment did not add an essential element and was not a substantial alteration of the charge.
The defendant also argued that it was error for him to receive two consecutive sentences because the predicate acts for both charges occurred during the same incident. The appellate court viewed this argument as “recasting a double jeopardy argument that has not been preserved for appellate review as a hybrid challenge to the unanimity of the verdict and sufficiency of the indictment,” and held there was no error. The two charges were supported by separate and distinct sexual acts, and the jury instructions and verdict sheets clearly indicated the jury was unanimous as to each of those charges; therefore, the trial court did not err in imposing consecutive sentences for the two offenses.
Defendant was charged by citation with misdemeanor larceny under G.S. 14-72. The prosecutor amended the citation by striking through the charging language and handwriting the word “shoplifting” on the citation, along with the prosecutor’s initials and the date. The defendant entered a guilty plea to a lesser charge of shoplifting under G.S. 14-72.1, but later filed an MAR in district court arguing that the amendment was improper and the court lacked subject matter jurisdiction to enter judgment. The district court denied the MAR, and the superior court denied defendant’s petition for writ of certiorari to review the denial. The Court of Appeals granted the defendant’s petition for writ of certiorari, and held that the lower courts erred and the MAR should have been granted. The purported amendment to the citation impermissibly changed the nature of the offense because larceny and shoplifting are separate crimes with different elements. “Thus, the amendment was not legally permissible and deprived the district court of jurisdiction to enter judgment against Defendant.” The Court of Appeals reversed the superior court’s denial of the petition for writ of certiorari and vacated the shoplifting judgment.
There was no fatal variance in an indictment where the State successfully moved to amend the indictment to change the date of the offense from May 10, 2013 to July 14, 2013 but then neglected to actually amend the charging instrument. Time was not of essence to any of the charged crimes and the defendant did not argue prejudice. Rather, he asserted that the very existence of the variance was fatal to the indictment.
In this Wayne County case, defendant appealed judgments for possession of heroin and cocaine and resisting a public officer, arguing error in failing to order a competency hearing sua sponte and ineffective assistance of counsel. Defendant’s appellate counsel also filed a brief under Anders v. California, 386 U.S. 738 (1967), requesting the Court of Appeals conduct an independent review of the record. After review, the court found no error with the lack of a competency hearing, dismissed the ineffective assistance of counsel argument without prejudice, and remanded the matter to the trial court for review of whether defendant validly waived indictment.
Defendant’s convictions arose from separate incidents in December 2018 and April 2021, where defendant was found with heroin and cocaine, respectively. In May of 2022 defendant pleaded guilty to the charges. Defendant’s appellate counsel then filed an Anders brief and defendant filed arguments on his own.
Examining defendant’s first argument, the Court of Appeals disagreed that the trial court committed error by failing to order a competency hearing. The court noted that no party raised the issue of defendant’s capacity, and “the trial court extensively inquired as to Defendant’s mental capacity and understanding of the proceedings.” Slip Op. at 4. The applicable standard from State v. Heptinstall, 309 N.C. 231 (1983), only requires a trial court to order a hearing sua sponte if substantial evidence before the court indicates the defendant is incompetent. Because there was no substantial evidence of defendant’s lack of capacity before the trial court here, there was no error.
Considering the ineffective assistance of counsel argument, the court explained that generally these claims “should be considered through motions for appropriate relief and not on direct appeal.” Slip Op. at 7. Because the record here was not fully developed to consider defendant’s argument regarding his representation, the court dismissed the claim without prejudice so that defendant could file a motion for appropriate relief with the trial court.
Conducting the independent review requested by defense counsel’s Anders brief, the court identified one possible error with the information related to the April 2021 charges. On the last page of the information, a file number was crossed out and replaced with a partially illegible handwritten number. The court explained “[w]hile this may be a scrivener’s error, our independent review of the Record at least reveals this potential issue of whether Defendant validly waived his right to indictment by a grand jury specifically in file number 18 CRS 55019.” Id. at 9. Based on this issue, the court remanded to the trial court to ensure the waiver of indictment was valid.
(1) The defendant was indicted for trafficking in MDMA, among other charges. When the case came on for trial, the trial judge called in prospective jurors and questioned them about undue hardships and conflicts with the parties and informed them of the charges against the defendant. The prosecutor then requested a bench conference at which he pointed out that the substance in the lab report showed that the relevant substance was methamphetamine, not MDMA. The prosecutor gave the defendant the choice between having the State dismiss the MDMA charge and reindict for trafficking in methamphetamine, or waiving indictment and proceeding by bill of information. The defendant chose the latter and was convicted at trial. On appeal, the defendant argued that the trial court lacked subject matter jurisdiction because the State did not file the superseding information “before . . . commencement of trial” within the meaning of G.S. 15A-646. The Court of Appeals disagreed, concluding that G.S. 15A-646 does not place any timing deadline on the State, but rather merely imposes a ministerial duty on the judge to dismiss the initial charge if a superseding indictment or information is filed before trial. The appellate court also rejected the defendant’s argument that the trial court lacked subject matter jurisdiction because the defendant was not formally arraigned on the new charge, as the lack of formal arraignment is not revisable error when the defendant does not object and assert inadequate knowledge of the charge. (2) The defendant also argued that the trial court committed plain error by failing, despite the lack of a request or objection, to instruct the jury on the requirement that the defendant have guilty knowledge of the methamphetamine. The Court of Appeals rejected the argument, distinguishing an earlier case, State v. Coleman, 227 N.C. App. 354 (2013). In Coleman, the court found plain error when the trial court failed to instruct on guilty knowledge for a defendant convicted of trafficking heroin who knew he possessed drugs, but who thought he had marijuana and cocaine, not heroin. Here, the defendant denied any knowledge about the existence of the methamphetamine and argued that it belonged to someone else. Even assuming the trial court erred by not giving the instruction, the Court of Appeals concluded it would not rise to the level of plain error given the evidence against the defendant.
The trial court erred by denying the defendant’s motion for appropriate relief alleging that the trial court lacked subject matter jurisdiction to enter judgment where the defendant was charged with a bill of information that did not include or attach a waiver of indictment. G.S. 15A-642 allows for the waiver of indictment in non-capital cases where a defendant is represented by counsel. The statute further requires: “Waiver of Indictment must be in writing and signed by the defendant and his attorney. The waiver must be attached to or executed upon the bill of information.” G.S. 15A-642(c). The court rejected the State’s argument that the statute’s requirements about waiver of indictment were not jurisdictional.
In this first-degree murder case, the trial court did not abuse its discretion by denying the defendant’s motion for a bill of particulars. The defendant argued that because the State used a short-form indictment to charge murder, he lacked notice as to which underlying felony supported the felony murder charge. Although a defendant is entitled to a bill of particulars under G.S. 15A-925, the bill of particulars provides factual information not legal theories. The court concluded: “the State’s legal theories are not ‘factual information’ subject to inclusion in a bill of particulars, and no legal mandate requires the State to disclose the legal theory it intends to prove at trial.”
On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 805 S.E.2d 701 (2017), the court affirmed, holding that the citation charging the offense in question was legally sufficient to properly invoke the trial court’s subject matter jurisdiction. The defendant was cited for speeding and charged with operating a motor vehicle when having an open container of alcohol while alcohol remained in his system. With respect to the open container charge, the citation stated that the defendant “did unlawfully and willfully WITH AN OPEN CONTAINER OF ALCOHOLIC BEVERAGE AFTER DRINKING (G.S. 20-138.7(A))[.]” The defendant moved to dismiss the open container charge on grounds that the citation was fatally defective. The District Court denied the motion and found the defendant guilty of both offenses. The defendant appealed to Superior Court and a jury found him guilty of the open container offense. Before the Court of Appeals, the defendant argued that the trial court lacked jurisdiction to try him for the open container offense because the citation failed to allege all of the essential elements of the crime. The Court of Appeals found no error and the Supreme Court affirmed. Relying in part on the Official Commentary to the statutes, the Supreme Court held that a citation need only identify the crime at issue; it need not provide a more exhaustive statement of the crime as is required for other criminal pleadings. If the defendant had concerns about the level of detail contained in the citation, G.S. 15A-922(c) expressly allowed him to move that the offense be charged in a new pleading. The court further determined that because the defendant did not move in District Court to have the State charge him in a new pleading while the matter was pending in the court of original jurisdiction, the defendant was precluded from challenging the citation in another tribunal on those grounds. The court concluded: “A citation that identifies the charged offense in compliance with N.C.G.S. § 15A-302(c) sufficiently satisfies the legal requirements applicable to the contents of this category of criminal pleadings and establishes the exercise of the trial court’s jurisdiction. Under the facts and circumstances of the present case, the citation at issue included sufficient criminal pleading contents in order to properly charge defendant with the misdemeanor offense for which he was found guilty, and the trial court had subject-matter jurisdiction to enter judgment in this criminal proceeding.”
A citation charging transporting an open container of spirituous liquor was not defective. The defendant argued that the citation failed to state that he transported the fortified wine or spirituous liquor in the passenger area of his motor vehicle. The court declined the defendant’s invitation to hold citations to the same standard as indictments, noting that under G.S. 15A-302, a citation need only identify the crime charged, as it did here, putting the defendant on notice of the charge. The court concluded: “Defendant was tried on the citation at issue without objection in the district court, and by a jury in the superior court on a trial de novo. Thus, once jurisdiction was established and defendant was tried in the district court, he was no longer in a position to assert his statutory right to object to trial on citation.” (quotation omitted).
In this DWI case, the court rejected the defendant’s argument that the trial court erred by denying his motion to quash a citation on grounds that he did not sign that document and the charging officer did not certify delivery of the citation. Specifically, the defendant argued that the officer’s failure to follow the statutory procedure for service of a citation divested the court of jurisdiction to enter judgment. The court found that the citation, which was signed by the charging officer, was sufficient. [Author’s note: The court’s opinion indicates that the citation was converted to a Magistrate’s Order and that Order was served on the defendant. Thus, the Magistrate’s Order, not the citation, was the relevant charging document and it is not clear why any defect with respect to the defendant’s and officer’s signatures on the citation was material.]
In this Union County case, defendant appealed his convictions for attempted first degree murder, going armed to the terror of the people, possession of a handgun by a minor, and discharge of a firearm within city limits, arguing error by insufficient findings to justify closure of the courtroom and by denial of his motion to dismiss the discharge of a firearm charge. The Court of Appeals agreed, remanding the case and vacating the discharge of a firearm conviction.
In August of 2018, defendant was armed and riding in a car with other armed occupants near a neighborhood basketball court. Defendant was seated in the front passenger seat, and when the vehicle passed a group of pedestrians walking to the basketball court, defendant leaned out the window and began shooting. One bullet hit a pedestrian but did not kill him. During the trial, the prosecution moved to close the courtroom during the testimony of two witnesses, the victim and another witness who was present during the shooting, arguing this was necessary to prevent intimidation. The trial court granted this motion over defendant’s objection, but allowed direct relatives of defendant and the lead investigator to be present during the testimony.
The Court of Appeals found that the trial court failed to utilize the four-part test from Waller v. Georgia, 467 U.S. 39 (1984), and failed to make findings sufficient for review to support closing the courtroom. The Waller test required the trial court to determine whether “’the party seeking closure has advanced an overriding interest that is likely to be prejudiced, order closure no broader than necessary to protect that interest, consider reasonable alternatives to closing the procedure, and make findings adequate to support the closure.’” Slip Op. at 4, quoting State v. Jenkins, 115 N.C. App. 520, 525 (1994). In the current case, the trial court did not use this test and made no written findings of fact at all. As a result, the Court of Appeals remanded for a hearing on the propriety of the closure using the Waller test.
Turning to defendant’s motion to dismiss, the court found that the arrest warrant and indictment were both defective as they did not contain the caption of the relevant ordinance. Under G.S. 160A-79(a), “a city ordinance . . . must be pleaded by both section number and caption.” Id. at 8. Here, the charging documents only reference the Monroe city ordinance by number, and failed to include the caption “Firearms and other weapons.” The court found the state failed to prove the ordinance at trial, and vacated defendant’s conviction for the discharge of a firearm within city limits charge.
In this second-degree sexual exploitation of a minor case, there was no fatal variance between the indictments and the evidence presented at trial. The indictments alleged a receipt date of December 17, 2009; the evidence established the date of receipt as October 18, 2009. A variance regarding time becomes material if it deprives the defendant of his ability to prepare a defense. Here, the defendant did not advance an alibi or other time-based defense at trial.
There was no fatal variance in an indictment where the State successfully moved to amend the indictment to change the date of the offense from May 10, 2013 to July 14, 2013 but then neglected to actually amend the charging instrument. Time was not of essence to any of the charged crimes and the defendant did not argue prejudice. Rather, he asserted that the very existence of the variance was fatal to the indictment.
In a failing to register case the trial court did not err by allowing the State to amend the indictment and expand the dates of offense from 7 November 2012 to June to November 2012. It reasoned that the amendment did not substantially alter the charge “because the specific date that defendant moved to Wilkes County was not an essential element of the crime.”
In a murder case in which the defendant relied on an alibi defense, the trial court did not err by allowing the State to amend the date of the offense stated in the indictment from December 28, 2009, to December 27, 2009. The court noted that because the defendant’s alibi witness’s testimony encompassed December 27th the defendant was not deprived of his ability to present a defense. Additionally, the State’s evidence included two eyewitness statements and an autopsy report, all of which noted the date of the murder as December 27; the defendant did not argue that he was unaware of this evidence well before trial.
A criminal summons charging the defendant with impaired driving was not defective on grounds that it failed to allege the exact hour and minute that the offense occurred.
In sexual assault case involving a child victim, there was a fatal variance between the indictment, that alleged an offense date of March 30, 2000 – December 31, 2000, and the evidence, which showed that the conduct occurred in the Spring of 2001. The State never moved to amend the indictment.
There was no fatal variance between a juvenile delinquency petition for indecent liberties alleging an offense date of November 14, 2008, and the evidence which showed an offense date of November 7-9, 2008. The juvenile failed to show that his ability to present an adequate defense was prejudiced by the variance.
In a child sex case, there was substantial evidence that the defendant abused the victim during the period alleged in the indictment and specified in the bill of particulars (Feb. 1, 2001 – Nov. 20, 2001) and at a time when the defendant was sixteen years old and thus could be charged as an adult. The evidence showed that the defendant abused the victim for a period of years that included the period alleged and that the defendant, who turned sixteen on January 23, 2001, was sixteen during the entire time frame alleged. Relying on the substantial evidence of acts committed while the defendant was sixteen, the court also rejected the defendant’s argument that by charging that the alleged acts occurred “on or about” February 1, 2001 – November 20, 2001, the indictment could have encompassed acts committed before he turned sixteen.
No fatal variance between the period of time alleged in the indictment and the evidence introduced at trial. The defendant was indicted on six counts of statutory rape: two counts each for the months of June, August, and September 2004. Assuming that the victim’s testimony was insufficient to prove that the defendant had sex with her twice in August, the court held that the state nevertheless presented sufficient evidence that the defendant had sex with her at least six times between June 2004 and August 12, 2004, including at least four times in July.
(1) In this robbery case, the indictment was not fatally defective for misspelling the defendant’s middle name. The indictment incorrectly alleged the defendant’s middle name as “Rashawn.” His actual middle name is “Rashaun.” A minor misspelling of a defendant’s name does not constitute a fatal defect absent some showing of prejudice.
(2) Neither an error in the indictment with respect to the defendant’s race nor one with respect to his date of birth rendered the indictment fatally defective. The indictment listed the defendant’s race as white despite the fact that he is black. Additionally, his date of birth was alleged to be 31 August 1991 when, in fact, his birth date is 2 October 1991. There is no requirement that an indictment include the defendant’s date of birth or race. Thus, these inaccuracies can be deemed surplusage.
(1) In this robbery case, the indictment was not fatally defective for misspelling the defendant’s middle name. The indictment incorrectly alleged the defendant’s middle name as “Rashawn.” His actual middle name is “Rashaun.” A minor misspelling of a defendant’s name does not constitute a fatal defect absent some showing of prejudice.
(2) Neither an error in the indictment with respect to the defendant’s race nor one with respect to his date of birth rendered the indictment fatally defective. The indictment listed the defendant’s race as white despite the fact that he is black. Additionally, his date of birth was alleged to be 31 August 1991 when, in fact, his birth date is 2 October 1991. There is no requirement that an indictment include the defendant’s date of birth or race. Thus, these inaccuracies can be deemed surplusage.
No due process violation resulted from the delay between commission of the offenses (2000) and issuance of the indictments (2007). Although the department of social services possessed the incriminating photos and instituted an action to terminate parental rights in 2001, the department did not then share the photos or report evidence of abuse to law enforcement or the district attorney. Law enforcement was not informed about the photos until 2007. The department’s delay was not attributable to the state.
The defendant was tried and convicted of two counts of first-degree statutory sex offense and two counts of indecent liberties in Union County. The convictions were affirmed on appeal, but the North Carolina Supreme Court found an error with the sentence and remanded for resentencing. On remand, the trial court sentenced the defendant to two consecutive 300-month minimum sentences for the sex offenses and arrested judgment on the indecent liberties convictions. The defendant again appealed, arguing that one of the indictments for each charge were defective. This argument was preserved despite the defendant’s failure to raise the issue earlier, as jurisdictional challenges to the validity of an indictment may be raised at any time.
Two separate indictments were issued charging the defendant with the sex offenses using identical language under one file number and two indictments for indecent liberties similarly used identical charging language under another file number. According to the defendant, the identical language in each set of indictments could have been duplicate originals and not separate offenses. The court rejected this argument. Both sets of indictments properly charged separate offenses in compliance with the requirements for short-form indictments under G.S. 15-144.2(b) (essentials of bill for sex offense) and under G.S. 15A-924 (contents of pleadings). The offenses were also properly joined for trial pursuant G.S. 15A-926 (joinder of offenses and defendants). That statute allows the State to join offenses under a single indictment but does not require it to do so. In the words of the court:
Defendant asks this Court to adopt a new rule by holding that, when read together, N.C. Gen. Stat. § 15A-924 and N.C. Gen. Stat. § 15A-926(a) bar the State from using multiple short-form indictments charging the same offense with the same file number. We decline to so hold. Helms Slip op. at 8.
The case was therefore affirmed.
A short form indictment charging the defendant with attempted first degree murder was defective. The indictment failed to allege that the defendant acted with “malice aforethought” as required by G.S. 15-144 (short form murder indictment). The court remanded for entry of judgment on the lesser of voluntary manslaughter.
Short-form murder indictment put the defendant on notice that the State might proceed on a theory of felony-murder.
The trial court did not err by denying the defendant’s request to submit the lesser offense of assault on a female when the defendant was charged with rape using the statutory short form indictment. The defense to rape was consent. The defendant argued on appeal that the jury could have found that the rape was consensual but that an assault on a female had occurred. The court rejected that argument reasoning that the acts that the defendant offered in support of assault on a female occurred separately from those constituting rape.
(1) In this robbery case, the indictment was not fatally defective for misspelling the defendant’s middle name. The indictment incorrectly alleged the defendant’s middle name as “Rashawn.” His actual middle name is “Rashaun.” A minor misspelling of a defendant’s name does not constitute a fatal defect absent some showing of prejudice.
(2) Neither an error in the indictment with respect to the defendant’s race nor one with respect to his date of birth rendered the indictment fatally defective. The indictment listed the defendant’s race as white despite the fact that he is black. Additionally, his date of birth was alleged to be 31 August 1991 when, in fact, his birth date is 2 October 1991. There is no requirement that an indictment include the defendant’s date of birth or race. Thus, these inaccuracies can be deemed surplusage.
The court rejected the defendant’s argument that there was a fatal variance between a sale and delivery indictment which alleged that the defendant sold the controlled substance to “A. Simpson” and the evidence. Although Mr. Simpson testified at trial that his name was “Cedrick Simpson,” not “A. Simpson,” the court rejected the defendant’s argument, stating:
[N]either during trial nor on appeal did defendant argue that he was confused as to Mr. Simpson’s identity or prejudiced by the fact that the indictment identified “A. Simpson” as the purchaser instead of “Cedric Simpson” or “C. Simpson.” In fact, defendant testified that he had seen Cedric Simpson daily for fifteen years at the gym. The evidence suggests that defendant had no question as to Mr. Simpson’s identity. The mere fact that the indictment named “A. Simpson” as the purchaser of the controlled substances is insufficient to require that defendant’s convictions be vacated when there is no evidence of prejudice, fraud, or misrepresentation.
No fatal variance where an indictment charging sale and delivery of a controlled substance alleged that the sale was made to “Detective Dunabro.” The evidence at trial showed that the detective had gotten married and was known by the name Amy Gaulden. Because Detective Dunabro and Amy Gaulden were the same person, known by both a married and maiden name, the indictment sufficiently identified the purchaser. The court noted that “[w]here different names are alleged to relate to the same person, the question is one of identity and is exclusively for the jury to decide.”
Criminal Procedure > Indictment & Pleading Issues > General Matters > Names > Victim’s Name—Generally
In this sex offense and indecent liberties case, the court held: (1) a sex offense indictment that identified the child victim as “Victim #1” was fatally defective; (2) the trial court’s erroneous failure to conduct a jury instruction conference prior to submitting the existence of a statutory aggravating factor to the jury did not “materially prejudice” the defendant.
(1) Following its decision in State v. White, 372 N.C. 248 (2019), the court held that an indictment charging the defendant with committing a sex offense with a child was fatally defective and facially invalid because it identified the victim as “Victim #1.” As in White, the court found that identifying the victim as “Victim #1” did not satisfy the requirement in G.S. 15-144.2(b) that a short form sex offense with a child indictment “[name] the child.”
(2) The court went on to determine that the trial court’s failure to conduct an instruction conference prior to submitting the existence of the “position of trust or confidence” statutory aggravating factor to the jury was error but that it did not “materially prejudice” the defendant. After accepting the jury’s verdict in the guilt-innocence phase of the trial, the trial court convened a proceeding for the purpose of determining whether a properly noticed “position of trust or confidence” statutory aggravating factor existed. The record clearly established that during this proceeding the trial court did not conduct a jury instruction conference or otherwise discuss the manner in which the jury should be instructed concerning the aggravating factor. G.S. 15A-1231(b) requires trial courts to hold a recorded conference on jury instructions but states that a failure “to comply fully” with the statute does not constitute grounds for appeal unless it “materially prejudiced the case of the defendant.” The Court of Appeals had held, relying on its own precedent, that the total failure to conduct a jury instruction conference necessitated a new proceeding on the aggravating factor regardless of whether the defendant made a showing of “material prejudice.” The Supreme Court rejected this approach and its distinction between cases in which the trial judge entirely fails to comply with G.S. 15A-1231(b) and those where there is partial compliance. Overruling any earlier decisions to the contrary, the Supreme Court explained:
[T]he reference in [G.S.] 15A-1231(b) to the necessity for the trial court to “comply fully” with the statutory requirement that a jury instruction conference be conducted, instead of distinguishing between a complete and a partial failure to comply with the applicable statutory requirement, is intended to require the making of a showing of “material prejudice” a prerequisite to an award of appellate relief regardless of the nature and extent of the trial court’s non-compliance with [G.S.] 15A-1231(b).
With this explanation of the statute, the court proceeded to analyze whether the defendant was materially prejudiced in this case and concluded that he was not, noting that there was undisputed overwhelming evidence that the victim was dependent on the defendant in various ways as his step-child and that the court previously had stated that evidence establishing a parent-child relationship tends to support the aggravating factor at issue.
In separate opinions, Justices Newby and Morgan dissented in part and concurred in result only in part. Justice Newby dissented from the portion of the majority opinion dealing with the validity of the indictment, noting that the defendant was “fully aware of the identity of the victim” and expressing his view that the indictment was sufficient. As for the instruction conference issue, Justice Newby interpreted G.S. 15A-1231(b) as not requiring a formal instruction conference at a sentencing proceeding to determine the existence of an aggravating factor. In a footnote, the majority opinion rejected this interpretation of the statute.
Justice Morgan also would have found the indictment valid because, scrutinizing the whole record, it sufficiently apprised the defendant of the charge against him. Justice Morgan noted that the victim’s initials appeared on the arrest warrant that was issued for the defendant and on an indictment returned against him for indecent liberties involving the same victim. Justice Morgan would have reached the same conclusion as the majority with regard to the instruction conference issue but would have done so by distinguishing rather than overruling the pertinent Court of Appeals opinions.
On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 805 S.E.2d 563 (2017) in this child sex case, the court held that an indictment identifying the alleged victim only as “Victim #1” is facially invalid. Although the arrest warrant and the original indictment identified the victim by her full name, a superseding indictment charging the defendant with sexual offense with a child by an adult stated that he engaged in a sexual act with “Victim #1, a child who was under the age of 13 years, namely 7 years old.” The defendant was found guilty and appealed. The Supreme Court found G.S. 15-144.2(b) to be clear and unambiguous: it requires that the child be named in the indictment. In common understanding, to name someone is to identify that person in a way that is unique to that individual and enables others to distinguish between the named person and all other people. The phrase “Victim #1” does not distinguish this victim from other children or victims. The court went on to clarify that facial validity of an indictment is determined by evaluating only the allegations in the criminal pleading; it rejected the notion that a court may supplement the allegations in an indictment by referring to extrinsic evidence.
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d 159 (2017), the court per curiam reversed for the reasons stated in the dissenting opinion below, thus holding that a larceny from a merchant indictment was not fatally defective. A majority of the panel of the Court of Appeals held that the indictment, which named the victim as “Belk’s Department Stores, an entity capable of owning property,” failed to adequately identify the victim. The court of appeals stated:
In specifying the identity of a victim who is not a natural person, our Supreme Court provides that a larceny indictment is valid only if either: (1) the victim, as named, itself imports an association or a corporation [or other legal entity] capable of owning property[;] or, (2) there is an allegation that the victim, as named, if not a natural person, is a corporation or otherwise a legal entity capable of owning property[.]” (quotations omitted).
The court of appeals further clarified: “A victim’s name imports that the victim is an entity capable of owning property when the name includes a word like “corporation,” “incorporated,” “limited,” “church,” or an abbreviated form thereof.” Here, the name “Belk’s Department Stores” does not itself import that the victim is a corporation or other type of entity capable of owning property. The indictment did however include an allegation that the store was “an entity capable of owning property.” Thus the issue presented was whether alleging that the store is some unnamed type of entity capable of owning property is sufficient or whether the specific type of entity must be pleaded. The Court of Appeals found that precedent “compel[led]” it to conclude that the charging language was insufficient. The Court of Appeals rejected the State’s argument that an indictment which fails to specify the victim’s entity type is sufficient so long as it otherwise alleges that the victim is a legal entity. The dissenting judge believed that the indictment adequately alleged the identity of the owner. The dissenting judge stated: “Given the complexity of corporate structures in today’s society, I think an allegation that the merchant named in the indictment is a legal entity capable of owning property is sufficient to meet the requirements that an indictment apprise the defendant of the conduct which is the subject of the accusation.” As noted, the Supreme Court reversed for reasons stated in the dissent.
Reversing the opinion below, State v. Ellis, __ N.C. App. __, 763 S.E.2d 574 (Oct. 7, 2014), the court held that an information charging injury to personal property was not fatally flawed. The information alleged the victims as: “North Carolina State University (NCSU) and NCSU High Voltage Distribution.” The court noted that the defendant did not dispute that North Carolina State University is expressly authorized to own property by statute, G.S. 116-3, “and is, for that reason, an entity inherently capable of owning property.” Rather, the defendant argued that the information was defective because “NCSU High Voltage Distribution” was not alleged to be an entity capable of owning property. The court held: “Assuming, without deciding, that the … information did not adequately allege that ‘NCSU High Voltage Distribution’ was an entity capable of owning property, that fact does not render the relevant count facially defective.” In so holding the court rejected the defendant’s argument that when a criminal pleading charging injury to personal property lists two entities as property owners, both must be adequately alleged to be capable of owning property. The court continued:
[A] criminal pleading purporting to charge the commission of a property-related crime like injury to personal property is not facially invalid as long as that criminal pleading adequately alleges the existence of at least one victim that was capable of owning property, even if the same criminal pleading lists additional victims who were not alleged to have been capable of owning property as well.
An indictment charging the defendant with felony larceny was not defective. The indictment alleged that the victim was “Sears Roebuck and Company.” The defendant argued that although the indictment contains the word “company,” it does not identify the victim as a company or other corporate entity. The Court disagreed. Noting prior case law holding defective an embezzlement indictment which alleged the victim’s name as “The Chuck Wagon,” the court noted that in this case the word “company” is part of the name of the property owner, “Sears Roebuck and Company.” It noted that that the words corporation, incorporated, limited, or company, or their abbreviated form sufficiently identify a corporation in an indictment.
An indictment charging statutory rape of a person who is 13, 14, or 15 years old was facially defective where it did not identify the victim by name, identifying her only as “Victim #1.” An indictment charging this crime must name the victim. The indictment need not include the victim’s full name; use of the victim’s initials may satisfy the “naming requirement.” However, an indictment “which identifies the victim by some generic term is not sufficient.”
The court rejected the defendant’s argument that there was a fatal variance between the indictment for misdemeanor larceny and the evidence at trial. Specifically, the defendant argued that there was a fatal variance between the allegation that he stole a checkbook from Glenn Cox and the evidence at trial, which showed that the checkbook belonged to Cox Auto Salvage. The court noted that a larceny indictment must allege a person who has a property interest in the stolen item, and that the State must prove that person has ownership, meaning title to the property or some special property interest. As to the case at hand, it concluded:
While there is no evidence tending to show Glenn Cox was the actual owner of Cox Auto Salvage, there is ample evidence indicating Cox had a special property interest in the checkbook. Cox testified the checkbook was his, had his name written on it, and contained stubs of checks he had written. Cox always kept a company checkbook, and he realized the checkbook was missing when he needed to pay a customer. We conclude this evidence establishes Cox was in exclusive possession and control of the checkbook, and that he viewed it as being his checkbook. Therefore, Cox had a special property interest in the checkbook.
There was no fatal variance in a larceny by employee indictment where the indictment alleged that the defendant’s employer was “Precision Auto Care, Inc. (PACI), a corporation” but the evidence at trial showed the actual name of the corporation to be “Precision Franchising, Inc.” doing business as “Precision Tune Auto Care.” The court noted in part: “Our courts have repeatedly held that minor variations between the name of the corporate entity alleged in the indictment and the evidence presented at trial are immaterial, so long as [t]he defendant was adequately informed of the corporation which was the accuser and victim. A variance will not be deemed fatal where there is no controversy as to who in fact was the true owner of the property.” The court noted that the variation in names did not impair the defendant’s ability to defend against the charges.
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however that the indictment’s failure to specify the country club as an entity capable of owning property was not fatal with respect to a separate charge of possession of stolen goods.
There was no fatal variance between a kidnapping indictment that named “Vera Alston” as a victim and the evidence at trial that showed the victim’s last name was “Pierson.” The court concluded:
[T]he evidence is undisputed that one of defendant’s victims for kidnapping and assault on the date alleged in the indictment naming “Vera Alston” as the victim was defendant’s mother-in-law, Vera Pierson. Given this, there was no uncertainty that the identity of the alleged victim “Vera Alston” was actually “Vera Pierson.” Further, [a]t no time … did Defendant indicate any confusion or surprise as to whom Defendant was charged with having kidnapped and assaulted. (quotation omitted).
The trial court did not err by allowing the State to amend the victim’s name as stated in an indictment for assault with a deadly weapon from “Christina Gibbs” to “Christian Gibbs.”
By failing to assert fatal variance as a basis for his motion to dismiss, the defendant failed to preserve the issue for appellate review. Even if the issue had been preserved, it had no merit. Defendant argued that there was a fatal variance between the name of the victim in the indictment, You Xing Lin, and the evidence at trial, which showed the victim’s name to be Lin You Xing. The variance was immaterial.
Distinguishing McKoy (discussed immediately above), the court held that juvenile petitions alleging that the juvenile committed first-degree sexual offense were defective because they failed to name a victim. The petitions referenced the victim as “a child,” without alleging the victims’ names.
Rape and sexual offense indictments were not fatally defective when they identified the victim solely by her initials, “RTB.” The defendant was not confused regarding the victim’s identity; because the victim testified at trial and identified herself in open court, the defendant was protected from double jeopardy.
On discretionary review from a unanimous unpublished decision of the Court of Appeals vacating a conviction for carrying a concealed gun on grounds that the indictment was fatally defective, the court reversed per curiam for the reasons stated in State v. Brice, ___ N.C. ___, ___ S.E.2d ___ (Nov. 3, 2017). The defendant was charged with felony carrying a concealed weapon, an offense that became a felony because of a prior conviction. The indictment did not comply with G.S. 15A-928, which requires a special indictment or separate count alleging the prior conviction. The Court of Appeals found that failure to comply with the statute was a jurisdictional defect; the Supreme Court reversed.
On discretionary review from unanimous decision of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 812 (2016), concluding that the habitual misdemeanor larceny indictment was defective, the court reversed. The Court of Appeals concluded that the indictment was defective because it failed to comply with G.S. 15A-928, a defect that was jurisdictional. The indictment alleged that the defendant stole the property after having been previously convicted of misdemeanor larceny on four separate occasions. The court began by holding that the indictment alleged all of the essential elements of habitual misdemeanor larceny. However, it failed to comply with G.S. 15A-928, which provides that when the fact that the defendant has been previously convicted of an offense raises the present offense to a higher grade and thereby becomes an element, the indictment must be accompanied by a special indictment charging the prior convictions or these allegations must be included as a separate count. Thus, the issue before the court was whether the fact that the indictment failed to comply with the separate indictment or separate account requirements set out in G.S. 15A-928 constituted a fatal defect depriving the trial court of jurisdiction. The court concluded that noncompliance with the statute was not a jurisdictional issue and thus could not be raised on appeal where, as here, the defendant raised no objection or otherwise sought relief on the issue before the trial court. The court overruled State v. Williams, 153 N.C. App. 192 (2002), which the Court of Appeals had relied on to conclude that a violation of G.S. 15A-928 was jurisdictional.
On remand from the state Supreme Court for reconsideration in light of State v. Brice, ___ N.C. ___, 806 S.E.2d 32 (2017) (habitual misdemeanor larceny indictment was not defective; a violation of G.S. 15A-928 is not jurisdictional and cannot be raised on appeal where the defendant raised no objection or otherwise sought relief on the issue in the trial court), the court held that because the defendant failed to raise the non-jurisdictional issue below, the defendant waived his right to appeal the issue of whether the aggravated felony death by vehicle indictment violated G.S. 15A-928.
Following State v. Jeffers, 48 N.C. App. 663, 665-66 (1980), the court held that G.S. 15A-928 (allegation and proof of previous convictions in superior court) does not apply to the crime of felon in possession of a firearm.
(1) In this habitual misdemeanor larceny case, the court rejected the defendant’s argument that the trial court created a fatal variance when it instructed the jury on a theory of acting in concert not alleged in the indictment. Citing prior case law, the court held that the theory of acting in concert need not be alleged in the indictment. (2) The court rejected the defendant’s argument that a fatal variance existed between the indictment, the jury instructions, and the verdict sheets because each held him accountable for stealing a different number of items. Neither the jury instructions nor the verdict sheet were required to specify the number of items stolen.
In a food stamp fraud case, the State is not required to allege in the indictment that the defendant aided and abetted the crime; aiding and abetting is a theory of liability that need not be included in the indictment.
In this sexual assault case, the State was not excused by G.S. 130A-143 (prohibiting the public disclosure of the identity of persons with certain communicable diseases) from pleading in the indictment the existence of the non-statutory aggravating factor that the defendant committed the sexual assault knowing that he was HIV positive. The court disagreed with the State’s argument that alleging the non-statutory aggravating factor would have violated G.S. 130A-143. It explained:
This Court finds no inherent conflict between N.C. Gen. Stat. § 130A-143 and N.C. Gen. Stat. § 15A-1340.16(a4). We acknowledge that indictments are public records and as such, may generally be made available upon request by a citizen. However, if the State was concerned that including the aggravating factor in the indictment would violate N.C. Gen. Stat. § 130A-143, it could have requested a court order in accordance with N.C. Gen. Stat. § 130A-143(6), which allows for the release of such identifying information “pursuant to [a] subpoena or court order.” Alternatively, the State could have sought to seal the indictment. (citations omitted)
Sentencing factors that might lead to an aggravated sentence need not be alleged in the indictment.
Indictment alleging that the defendant discharged a barreled weapon into an occupied residence properly charged the Class D version of this felony (shooting into occupied dwelling or occupied conveyance in operation) even though it erroneously listed the punishment as the Class E version (shooting into occupied property).
Although the indictment failed to specify G.S. 14-208.9(a) (sex offender registration violation) as the statute violated, this omission alone did not create a fatal defect.
There was no fatal defect in an indictment for felony assault on a handicapped person. The indictment alleged, in part, that the defendant unlawfully, willfully, and feloniously assaulted and struck “a handicapped person by throwing Carol Bradley Collins across a room and onto the floor and by striking her with a crutch on the arm. In the course of the assault the defendant used a deadly weapon, a crutch. This act was in violation of North Carolina General Statutes section 14-17.” The court determined that the indictment was not defective because of failure to cite the statute violated. Although the indictment incorrectly cited G.S. 14-17, the statute on murder, the failure to reference the correct statute was not, by itself, a fatal defect.
Because an arrest warrant charged the defendant with a violation of G.S. 67-4.2 (failing to confine a dangerous dog), it could not support a conviction for a violation of G.S. 67-4.3 (attack by a dangerous dog). Even though the warrant cited G.S. 67-4.2, it would have been adequate if it had alleged all of the elements of a G.S. 67-4.3 offense. However, it failed to do so as it did not allege that the injuries required medical treatment costing more than $100.
An indictment charging accessory after the fact to first-degree murder was sufficient to support a conviction of accessory after the fact to second-degree murder. The indictment alleged that a felony was committed, that the defendant knew that the person he assisted committed that felony, and that he rendered personal assistance to the felon; it thus provided adequate notice to prepare a defense and protect against double jeopardy.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Human Trafficking and Related Offenses
In this human trafficking case involving multiple victims, (1) the trial court did not abuse its discretion by allowing the defendant to represent himself; (2) the indictments were sufficient to convey subject matter jurisdiction; (3) the trial court did not err by entering judgments for multiple counts of human trafficking for each victim; and (4) the trial court did not err in determining the defendant’s prior record level.
(1) The Court of Appeals rejected the defendant’s argument that the trial court’s statements concluding that he had an “absolute right” to represent himself coupled with the trial court’s failure to consider whether he fell into the “gray area” of being competent to stand trial but incapable of representing himself was a mistake of law requiring a new trial. While the defendant suffered from an unspecified personality disorder and drug use disorders, the record showed that the trial court “undertook a thorough and realistic account of Defendant’s mental capacities and competence before concluding Defendant was competent to waive counsel and proceed pro se.” The Court of Appeals noted that after interacting with him, considering his medical conditions, and receiving testimony concerning his forensic psychiatric evaluation, two judges had ruled that Defendant was competent to proceed and represent himself. The Court of Appeals said that even if the trial court erred in allowing the defendant to represent himself, he invited the error by disagreeing with the manner of representation of appointed counsel and any such error was harmless beyond a reasonable doubt.
(2) The Court of Appeals rejected the defendant’s arguments concerning the sufficiency of the seventeen indictments charging him with human trafficking of six different victims. The Court noted that the indictments alleged every element of the offense within a specific time frame for each victim and tracked the language of the relevant statute word for word.
(3) The Court then turned to and rejected the defendant’s argument that human trafficking is a continuous offense and may only be charged as one crime for each victim. The Court explained that the defendant’s interpretation of G.S. 14-43.11, which explicitly provides that each violation of the statute “constitutes a separate offense,” would “result in perpetrators exploiting victims for multiple acts, in multiple times and places, regardless of the length of the timeframe over which the crimes occurred as long as the Defendant’s illegal actions and control over the victim were ‘continuous.’” The Court characterized human trafficking as “statutorily defined as a separate offense for each instance.”
(4) Finally, the Court determined that the defendant failed to show any error in the trial court’s calculation of his prior record level for sentencing purposes. With regard to a prior federal felon in possession of a firearm charge, the defendant conceded its classification as a Class G felony on the basis of substantial similarity by not objecting at trial when given the opportunity. Likewise with regard to a misdemeanor drug paraphernalia charge, the defendant conceded its classification as a Class 1 misdemeanor by not objecting when given the opportunity.
Judge Arrowood concurred in part and dissented in part by separate opinion, expressing his view that it was improper to convict the defendant of multiple counts per victim of human trafficking. Judge Arrowood explained that North Carolina precedent, specifically involving issues of first impression addressing statutory construction, “clearly instructs that, where a criminal statute does not define a unit of prosecution, a violation thereof should be treated as a continuing offense.” Judge Arrowood then proceeded with a lengthy and detailed analysis of the appropriate unit of prosecution for human trafficking in North Carolina.
The trial court committed plain error by instructing the jury that it could find the defendant guilty of conspiracy if the defendant conspired to commit felony breaking and entering or felony larceny where the indictment alleged only a conspiracy to commit felony breaking or entering.
A conspiracy to commit armed robbery indictment was defective when it did not allege an agreement to commit an unlawful act. The court rejected the State’s argument that the indictment's caption, which identified the charge as "Conspiracy to Commit Robbery with a Dangerous Weapon," and the indictment's reference to the offense being committed in violation of G.S. 14-2.4 (governing punishment for conspiracy to commit a felony) saved the indictment.
When a conspiracy indictment names specific individuals with whom the defendant is alleged to have conspired and the evidence shows the defendant may have conspired with others, it is error for the trial court to instruct the jury that it may find the defendant guilty based upon an agreement with persons not named in the indictment. However, the jury instruction need not specifically name the individuals with whom the defendant was alleged to have conspired as long as the instruction comports with the material allegations in the indictment and the evidence at trial. In this case, the indictment alleged that the defendant conspired with Jimon Dollard and an unidentified male. The trial court instructed the jury that it could find the defendant guilty if he conspired with “at least one other person.” The evidence showed that the defendant and two other men conspired to commit robbery. One of the other men was identified by testifying officers as Jimon Dollard. The third man evaded capture and was never identified. Although the instruction did not limit the conspiracy to those named in the indictment, it was in accord with the material allegations in the indictment and the evidence presented at trial and there was no error.
In this second-degree sex offense case, the court vacated and remanded for entry of judgment on attempted sexual offense where the indictment charged the defendant only with an attempted, not a completed, sex offense. The indictment, labeled “Second Degree Sexual Offense,” alleged that the defendant “did attempt to engage in a sex offense with the victim.” Notwithstanding this, the trial court instructed the jury on the completed offense and provided no instruction on attempt.
On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 808 S.E.2d 178 (2017), the court reversed the decision below holding that the short form indictment for attempted first-degree murder was not fatally defective. G.S. 15-144 provides short form language for charging murder. It provides: “[I]t is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed), and concluding as is now required by law; and it is sufficient in describing manslaughter to allege that the accused feloniously and willfully did kill and slay (naming the person killed), and concluding as aforesaid . . . .” The indictment here charged the defendant with attempted first-degree murder and alleged, in relevant part, that the defendant “did attempt to kill and slay” the victim with malice aforethought. Although agreeing that the terms “murder” and “slay” are not interchangeable, the court concluded that use of the word slay in place of the word murder in the indictment at issue “is a distinction without a difference” where the indictment also charged that the killing was done with malice aforethought. The court noted that “[w]hile it may have been a better practice” for the State to use the exact language provided in the statute, “the prosecution’s failure to do so did not render the indictment fatally defective.” It held: “the use of the term ‘slay’ instead of ‘murder’ in an indictment that also includes an allegation of ‘malice aforethought’ complies with the relevant constitutional and statutory requirements for valid murder offense indictments and serves its functional purposes with regard to both the defendant and the court.”
No fatal variance occurred when a juvenile petition alleged that the juvenile assaulted the victim with his hands and the evidence established that he touched her with an object.
The defendant was convicted by a jury of assault inflicting serious bodily injury and assault on a female based on an argument and fight with the mother of his child. He pushed her down, threw her head into the concrete, punched her, dragged her, and flung her onto the hood of a car. Among other injuries she had two concussions and a fractured eye socket that rendered her temporarily blind in one eye for two weeks. (1) The defendant argued on appeal that the indictment failed to allege the crime of assault inflicting serious bodily injury in that it alleged injuries that would be no more than misdemeanor assault inflicting serious injury, namely, “several lacerations to the face resulting in stitches and a hematoma to the back of the head.” The court of appeals disagreed, holding that the additional description of the victim’s injuries in the indictment was irrelevant as to its validity, and may be regarded as incidental to the salient statutory language, which was present. (2) The injury to the victim’s eye met the statutory definition of “serious bodily injury” in G.S. 14-32.4(a) in that the defendant was completely blind in her left eye for one week and her vision was not fully restored for two full weeks after the assault. She could not drive for one week and was not able to return to work until her vision was completely restored. A reasonable juror thus could have concluded that the injury resulted in a “protracted loss or impairment of the function of a bodily member or organ,” and that it therefore qualified as a serious bodily injury. (3) Finally, the court declined to consider the defendant’s argument on appeal that the trial court should have instructed the jury on misdemeanor assault inflicting serious injury. The defendant never objected to the instructions at trial and failed to argue plain error on appeal. Therefore, he waived the issue on appeal. A judge dissenting in part would have found the evidence here insufficient to qualify as a “protracted loss or impairment” when the victim fully recovered in in two weeks.
An indictment charging assault with a deadly weapon inflicting serious injury on victim E.D. was not defective. The defendant asserted that the indictment was defective because it failed to include the word “assault” in its description of the offense. The court concluded that while the indictment failed to include that word, it sufficiently charged the offense. Specifically, it alleged, in relevant part: “that . . . the defendant . . . did E.D. with a screwdriver, a deadly weapon, inflicting serious injury, against the form of the statute in such case made and provided and against the peace and dignity of the State.” Additionally, it correctly listed the offense as “AWDW SERIOUS INJURY” and referenced the correct statute. As such it sufficiently apprised the defendant of the crime.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Assaults > Assault with a Deadly Weapon
There was no fatal variance between an indictment charging assault with a deadly weapon with intent to kill inflicting serious injury and the evidence at trial. The indictment alleged the deadly weapon to be a handgun while the trial evidence showed it was an AK-47 rifle. The court reasoned: “both a handgun and an AK-47 rifle are a type of gun, are obviously dangerous weapons, and carry the same legal significance.” Moreover, the defendant failed to demonstrate that the variance caused prejudice.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Assaults > Assault by Strangulation
Even if there was a fatal variance between the indictment, which alleged that the defendant accomplished the strangulation by placing his hands on the victim’s neck, and the evidence at trial, the variance was immaterial because the allegation regarding the method of strangulation was surplusage.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Assaults > Assault on Government Officer
There was no fatal variance between a warrant charging assault on a government officer under G.S. 14-33(c)(4) and the evidence at trial. The warrant charged that the assault occurred while the officer was discharging the duty of arresting the defendant for communicating threats but at trial the officer testified that the assault occurred when he was arresting the defendant for being intoxicated and disruptive in public. The pivotal element was whether the assault occurred while the officer was discharging his duties; what crime the arrest was for is immaterial.
Indictment charging assault on a government officer under G.S. 14-33(c)(4) need not allege the specific duty the officer was performing and if it does, it is surplusage.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Assaults > Assault on Handicapped Person
There was no fatal defect in an indictment for felony assault on a handicapped person. The indictment alleged, in part, that the defendant unlawfully, willfully, and feloniously assaulted and struck “a handicapped person by throwing Carol Bradley Collins across a room and onto the floor and by striking her with a crutch on the arm. In the course of the assault the defendant used a deadly weapon, a crutch. This act was in violation of North Carolina General Statutes section 14-17.” The court rejected the argument that the indictment was defective for failing to allege the specific nature of the victim’s handicap. The court also rejected the defendant’s argument that the indictment was defective by failing to allege that he knew or reasonably should have known of the victim’s handicap. Citing State v. Thomas, 153 N.C. App. 326 (2002) (assault with a firearm on a law enforcement officer case), the court concluded that although the indictment did not specifically allege this element, its allegation that he “willfully” assaulted a handicapped person indicated that he knew that the victim was handicapped. Finally, the court determined that the indictment was not defective because of failure to cite the statute violated. Although the indictment incorrectly cited G.S. 14-17, the statute on murder, the failure to reference the correct statute was not, by itself, a fatal defect.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Assaults > Malicious Conduct by Prisoner
Indictment charging malicious conduct by prisoner under G.S. 14-258.4 need not allege the specific duty the officer was performing and if it does, it is surplusage.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Assaults > Habitual Misdemeanor Assault
A two-count indictment properly alleged habitual misdemeanor assault. Count one alleged assault on a female, alleging among other things that the defendant’s conduct violated G.S. 14-33 and identifying the specific injury to the victim. The defendant did not contest the validity of this count. Instead, he argued that count two, alleging habitual misdemeanor assault, was defective because it failed to allege a violation of G.S. 14-33 and that physical injury had occurred. Finding State v. Lobohe, 143 N.C. App. 555 (2001) (habitual impaired driving case following the format of the indictment at issue in this case), controlling the court held that the indictment complied with G.S. 15A-924 & -928.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Child Abuse & Related Offenses
In this child abuse case the trial court erred by allowing the State to amend the indictment. The defendant was indicted for negligent child abuse under G.S. 14-318.4(a5) after police discovered her unconscious in her apartment with track marks on her arms and her 19-month-old child exhibiting signs of physical injury. Under that statute, a parent is guilty of negligent child abuse if the parent’s “willful act or grossly negligent omission in the care of the child shows a reckless disregard for human life” and the parent’s act or omission “results in serious bodily injury to the child.” The indictment charged that the defendant committed this offense by negligently failing to treat her child’s wounds. At trial, the trial court allowed the State to amend the indictment “to include failure to provide a safe environment as the grossly negligent omission as well.” This amendment was improper because it constituted a substantial alteration of the indictment. The amendment alleged conduct that was not alleged in the original indictment and which constituted the “willful act or grossly negligent omission,” an essential element of the charge. The amendment thus allowed the jury to convict the defendant of conduct not alleged in the original indictment. Additionally, the amendment violated the North Carolina Constitution, which requires the grand jury to indict and the petit jury to convict for offenses charged by the grand jury.
Where the warrant charging contributing to the abuse or neglect of a juvenile alleged, in part, that the defendant knowingly caused, encouraged, and aided the child “to commit an act, consume alcoholic beverage,” the State was not prohibited from showing that the defendant also contributed to the abuse or neglect of the juvenile by engaging her in sexual acts. The court noted that an indictment that fails to allege the exact manner in which the defendant contributed to the delinquency, abuse, or neglect of a minor is not fatally defective.
(1) An indictment for contributing to the delinquency/neglect of a minor was not defective. The indictment tracked the statutory language but did not specify the specific acts at issue. An indictment for a statutory offense is sufficient if the offense is charged in the words of the statutes, or equivalent words. Any error in the caption of the indictment was immaterial. (2) With respect to assault on a child under 12, the trial court erred by permitting the jury to convict on a criminal negligence theory of intent, which was not alleged in the indictment.
An indictment charging felony child abuse by sexual act under G.S. 14-318.4(a2) is not required to allege the particular sexual act committed. Language in the indictment specifying the sexual act as anal intercourse was surplusage.
In this malicious maiming case, the trial court did not err by instructing the jury on a theory that was not alleged in the indictment. The indictment alleged that the defendant “put out” the victim’s eye. The jury instructions told the jury it could convict if it found that the defendant “disabled or put out” the victim’s eye. Given the evidence in the case—that the victim suffered complete blindness—term “disabled” as used in the instructions can only be interpreted to mean total loss of sight.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Rape
In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.
(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.
(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.
(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):
Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).
The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.
(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:
[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).
The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, "when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.
(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim. He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed:
[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.
Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]
(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects.
(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.
(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.
A majority of the court determined there were no reversible error in the trial and the convictions were affirmed.
Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.
The court per curiam affirmed the unpublished decision of a divided panel of the court of appeals in State v. McDaris, 224 N.C. App. 399 (Dec. 18, 2012) (No. COA12-476). The court of appeals had held that a variance between the indictments and the jury instructions did not deprive the defendant of a defense. The indictments charged the defendant with statutory rape of a 13, 14, or 15 year old but specified that the victim was 15 years old at the time. Based on the evidence, the trial court instructed the jury that it could convict the defendant if the jury found that the victim was 14 or 15 years old. The jury found the defendant guilty. On appeal the defendant argued that the trial court committed reversible error by instructing the jury that it could convict if it found that the acts occurred when the victim was 14 or 15 years old, because the indictments alleged that she was 15 years old. At trial the defendant attempted to prove that the incidents occurred when the victim was 16, which would have been a complete defense. The jury rejected this defense. In light of this, the court of appeals determined that any error was not so prejudicial as to require a new trial.
On review of a unanimous, unpublished decision of the court of appeals in State v. Pizano-Trejo, ___ N.C. App. ___, 723 S.E.2d 583 (2012), the members of the Supreme Court equally divided, leaving the decision below undisturbed and without precedential value. The court of appeals had held that the trial court committed plain error by instructing the jury and accepting its guilty verdict for the crimes of “sexual offense with a child,” a crime for which the defendant was not indicted. The defendant was indicted for one count of first degree statutory sexual offense under G.S. 14–27.4(a)(1), and two counts of taking indecent liberties with a minor. However, the trial court instructed the jury on the crime of sexual offense with a child by an adult offender under G.S. 14–27.4A. The defendant was found guilty of both counts of taking indecent liberties with a child and one count of first degree statutory sex offense pursuant to G.S. 14–27.4(a)(1).
In this Wake County case, defendant appealed his conviction for second-degree rape due to a missing element in the charging indictment, and his conviction for first-degree kidnapping due to insufficiency of the evidence. The Court of Appeals found the charging indictment was flawed and vacated defendant’s rape conviction, but affirmed his conviction for kidnapping.
In November of 2017, a college student went to a bar in downtown Raleigh with a group of friends and became intoxicated. Security camera footage showed defendant helping the victim into his vehicle around 2:25am. The student remembered dancing with her sister and friends around 2:00am; her next memory was around 5:30am when she found herself in defendant’s vehicle while he was engaging in sexual intercourse with her. The student told defendant to stop, tried to find her cellphone, and then fled the vehicle when she could not find her phone. The student reported the incident and defendant was convicted of rape and kidnapping after a trial.
The Court of Appeals first reviewed the charging indictment for defendant’s rape conviction, explaining that in North Carolina, one purpose of a charging indictment is to confer jurisdiction on the trial court. Failure to allege each element of a crime is a jurisdictional defect that cannot be waived. The court noted applicable precedent showing that an indictment may use different language that the statute that creates the offense, but the language used must be sufficiently similar to represent all elements of the crime alleged. In the current matter, the indictment used the phrase “engaged in vaginal intercourse” as opposed to the statute’s “carnally know and abuse.” Slip Op. at 7. The court explained that this was not sufficient because the indictment did not include “abuse,” as “[t]he inclusion of ‘abuse” is necessary to describe that [d]efendant knew and took advantage of [the victim’s] physical inability to resist his advances.” Id. Because of this flaw, the court vacated the judgment of rape and dismissed the indictment without prejudice.
Reviewing defendant’s argument of insufficiency of the evidence for his kidnapping conviction, the court found ample evidence in the record to support the elements of first-degree kidnapping. Explaining the evidence, the court found that defendant transported defendant for purposes of a felony and released her in an area that was unknown to her and not safe in her intoxicated condition.
In this Randolph County case, the defendant appealed from his conviction for statutory rape, arguing that the trial court erred in (1) denying his motion to suppress evidence from his interrogation because he requested and did not receive counsel, and (2) denying his motion to dismiss because the dates alleged in the indictment varied from the victim’s testimony.
(1) The defendant came to the sheriff’s office for questioning at a detective’s request. Detectives told him about the victim’s allegations that they had vaginal intercourse over a two-year period beginning in 2016, when the victim was 14 and the defendant was 33. After the detectives played a recording of the defendant speaking to the victim, the defendant admitted he had engaged in vaginal intercourse with the victim multiple times in 2017 and 2018. A detective subsequently told the defendant he was under arrest and read the defendant Miranda rights. The defendant said, “I’ll talk to you but I want a lawyer with it and I don’t have the money for one.” The detectives asked additional questions about whether the defendant wanted to speak without a lawyer present. One detective told the defendant that speaking with the detectives “can’t hurt.” This exchange culminated in the defendant signing a waiver of his right to counsel and continuing to speak with the detectives.
The defendant moved to suppress any statements from the interrogation. The trial court denied the motion. The Court of Appeals found no error, concluding that the defendant was not in custody when he initially confessed and that a reasonable police officer would not have understood the defendant’s statement after he was arrested as an unambiguous request for counsel during interrogation. The Court determined that the trial court’s findings were supported by competent evidence that defendant’s request for counsel was ambiguous and the detectives’ statements were an attempt to clarify the defendant’s statements.
(2) The date of the vaginal intercourse listed on the indictment was 2017, but the victim testified at trial that the intercourse occurred in 2016. The defendant moved to dismiss based on this variance. The trial court denied the motion and the Court of Appeals found no error. The Court reasoned that the date given in an indictment for statutory rape is not an essential element of the crime, and noted that courts are lenient concerning dates in cases involving the sexual abuse of minors. The Court concluded that the victim’s testimony alleging vaginal intercourse in 2016 between her and Defendant—when she was 14 and the defendant was 19 years her elder—was sufficient to survive a motion to dismiss.
Judge Arrowood concurred in the result, but wrote separately to opine that once the defendant stated that he wanted a lawyer, the custodial interrogation should have ceased. Nevertheless, given that defendant’s initial confession was made voluntarily and prior to custodial interrogation, Judge Arrowood would have found the trial court’s denial of the suppression motion to be harmless error.
(1) A short form indictment under G.S. 15-144.1 was sufficient to charge the defendant with attempted statutory rape of a 13, 14, or 15 year old. The defendant had argued that the statutory short form does not apply to an indictment alleging statutory rape of a 13 year old. (2) The indictment conformed to the requirements of G.S. 15-144.1 even though it failed to allege that the act occurred “by force and against her will” or that the defendant attempted to “ravish and carnally know” the victim.
(1) An indictment charging statutory rape of a 13, 14, or 15 year old was not defective because it alleged that the defendant did “carnally know” the victim. The court rejected the argument that the indictment was required to allege that “vaginal intercourse” occurred, concluding that the two terms were synonymous. (2) The court rejected the defendant’s argument that the same indictment was defective in that it failed to conform to the short form provided in G.S. 15-144.1. The court concluded that the short form did not apply to the crime charged and that the indictment alleged all material elements of the offense.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Sex Offense
In this second-degree sex offense case, the court vacated and remanded for entry of judgment on attempted sexual offense where the indictment charged the defendant only with an attempted, not a completed, sex offense. The indictment, labeled “Second Degree Sexual Offense,” alleged that the defendant “did attempt to engage in a sex offense with the victim.” Notwithstanding this, the trial court instructed the jury on the completed offense and provided no instruction on attempt.
Where the indictment charged the defendant with sexual offense in violation of G.S. 14-27.4(a)(1) (first-degree statutory sex offense with a child under the age of 13), the trial court erred by instructing the jury on sexual offense with a child in violation of G.S. 14-27.4A(a) (statutory sexual offense by an adult). The court noted that the charged offense was a lesser included of the offense of conviction, and that while the charged offense requires the State to prove that the defendant was at least 12 years old and at least 4 years older than the victim, the offense of conviction requires proof that the defendant is at least 18 years old. The court found itself bound by State v. Hicks, 239 N.C. App. 396 (Feb. 17, 2015), vacated the conviction and remanded for resentencing on the lesser included offense.
The trial court committed plain error by instructing the jury on sexual offense with a child by an adult offender under G.S. 14-27.4A when the indictment charged the defendant with first-degree sexual offense in violation of G.S. 14-27.4(a)(1), a lesser-included of the G.S. 14-27.4A crime. The court vacated defendant's conviction under G.S. 14-27.4A and remanded for resentencing and entry of judgment on the lesser-included offense. Additionally, the court appealed to the General Assembly to clarify the relevant law:
This case illustrates a significant ongoing problem with the sexual offense statutes of this State: the various sexual offenses are often confused with one another, leading to defective indictments.
Given the frequency with which these errors arise, we strongly urge the General Assembly to consider reorganizing, renaming, and renumbering the various sexual offenses to make them more easily distinguishable from one another. Currently, there is no uniformity in how the various offenses are referenced, and efforts to distinguish the offenses only lead to more confusion. For example, because "first degree sexual offense" encompasses two different offenses, a violation of N.C. Gen. Stat. § 14-27.4(a)(1) is often referred to as "first degree sexual offense with a child" or "first degree statutory sexual offense" to distinguish the offense from "first degree sexual offense by force" under N.C. Gen. Stat. § 14-27.4(a)(2). "First degree sexual offense with a child," in turn, is easily confused with "statutory sexual offense" which could be a reference to a violation of either N.C. Gen. Stat. § 14-27.4A (officially titled "[s]exual offense with a child; adult offender") or N.C. Gen. Stat. § 14-27.7A (2013) (officially titled "[s]tatutory rape or sexual offense of person who is 13, 14, or 15 years old"). Further adding to the confusion is the similarity in the statute numbers of N.C. Gen. Stat. § 14-27.4(a)(1) and N.C. Gen. Stat. § 14-27.4A. We do not foresee an end to this confusion until the General Assembly amends the statutory scheme for sexual offenses.
(citations omitted).
Noting that the sufficiency of a petition alleging a juvenile to be delinquent is evaluated by the same standards that apply to indictments, the court held that petitions alleging two acts of sexual offense and two acts of crime against nature were sufficient. In addition to tracking the statutory language, one sexual offense and one crime against nature petition alleged that the juvenile performed fellatio on the victim; the other sexual offense and crime against nature petitions alleged that the victim performed fellatio on the juvenile. The court rejected the defendant’s argument that any more detail was required, noting that if the juvenile wanted more information about the factual circumstances underlying each charge he should have moved for a bill of particulars.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Crime Against Nature
Noting that the sufficiency of a petition alleging a juvenile to be delinquent is evaluated by the same standards that apply to indictments, the court held that petitions alleging two acts of sexual offense and two acts of crime against nature were sufficient. In addition to tracking the statutory language, one sexual offense and one crime against nature petition alleged that the juvenile performed fellatio on the victim; the other sexual offense and crime against nature petitions alleged that the victim performed fellatio on the juvenile. The court rejected the defendant’s argument that any more detail was required, noting that if the juvenile wanted more information about the factual circumstances underlying each charge he should have moved for a bill of particulars.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Indecent Liberties
(1) In this Montgomery County case, the defendant was convicted of indecent liberties with a child and attaining the status of habitual felon. (1) The defendant argued on appeal that the indecent liberties indictment was fatally defective because it identified the alleged victim only by her initials. The Court of Appeals disagreed. First, the Court noted that State v. McKoy, 196 N.C. App. 650 (2009), held that identifying the victim by initials was sufficient for an indictment charging second-degree rape and second-degree sexual offense. The Court rejected the defendant’s argument that McKoy was overruled by State v. White, 372 N.C. 248 (2019), a case in which the North Carolina Supreme Court held that a sex offense indictment identifying the victim only as “Victim #1” was insufficient. Next, the Court considered whether the indictment would inform a person of reasonable understanding that the defendant was charged with indecent liberties with a child and whether the use of the victim’s initials protected the defendant’s constitutional rights to notice and freedom from double jeopardy. The Court found the indictment satisfied both requirements. A person with common understanding would know the intent of the indictment, and the record demonstrated that the defendant had notice of the victim’s identity. The arrest warrants listed the victim’s full name. The defendant was interviewed by officers regarding his contact with the victim, and he admitted that he knew her. The defendant did not argue that he had difficulty preparing his case because the initials were used rather than the victim’s full name. In addition, the victim testified at trial and identified herself by her full name in open court. The Court concluded there was no possibility that the defendant was confused regarding the victim’s identity; therefore the use of initials in the indictment provided the defendant with sufficient notice to prepare his defense and protect himself against double jeopardy.
(2) The defendant argued that the trial court plainly erred by admitting testimony and evidence that vouched for the victim’s credibility. The defendant objected on appeal (but not at trial) to the introduction of statements from Randolph County Department of Social Services employee Morgan Halkyer and Andrew, the victim’s uncle. Halkyer’s recorded interview with the victim was played for the jury. In that interview, Halkyer told the victim: “No kid should ever be put in that situation by an adult, you know, they’re an adult, they should know better.” The Court held that Halkyer did not impermissibly vouch for the victim’s credibility since her statements were not tantamount to an opinion that the victim was telling the truth. Instead, the statements provided the jury with the context of Halkyer’s interview. In that interview, Halkyer was not attempting to opine about whether the victim was truthful but was comforting the victim with general statements about adult behavior.
The defendant also argued that the trial court plainly erred in admitting text messages Andrew sent to the victim, in which stated that the defendant committed a crime. Among the texts was a statement that “they need to understand that a 40 year old man took you too [sic] his house and attempted inappropriate actions. It's [sic] may not be sexual assault but it is illegal.” Considering that the jury was instructed that its role was to judge the believability of the witnesses, the victim’s extensive testimony at trial, and the defendant’s statement that “maybe things did go a little too far,” the Court found that the defendant failed to demonstrate that Andrew’s text messages had a probable impact on the jury’s verdict. Thus, the Court held that any error in the admission of this evidence was not plain error.
Five indecent liberties indictments were sufficient where they were couched in the language of the statute and specified different and non-overlapping time frames. The court rejected the defendant’s argument that the indictments were insufficient because they included “non-specific allegations.”
In an indecent liberties case, the trial judge’s jury instructions were supported by the indictment. The indictment tracked the statute and did not allege an evidentiary basis for the charge. The jury instructions, which identified the defendant’s conduct as placing his penis between the child’s feet, was a clarification of the evidence for the jury.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Peeping
An indictment charging felony peeping was not defective. Rejecting the defendant’s argument that the indictment was defective because it failed to allege that the defendant’s conduct was done without the victim’s consent, the court concluded that “any charge brought under N.C.G.S. § 14-202 denotes an act by which the defendant has spied upon another without that person’s consent.” Moreover, the charging language, which included the word “surreptitiously” gave the defendant adequate notice. Further, the element of “without consent” is adequately alleged in an indictment that indicates the defendant committed an act unlawfully, willfully, and feloniously.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Sex Offender Crimes
In an appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 774 S.E.2d 871 (2015), the court per curiam affirmed for the reasons stated in State v. Williams, 368 N.C. 620 (Jan. 29, 2016) (in a case where the defendant, a sex offender, was charged with violating G.S. 14-208.11 by failing to provide timely written notice of a change of address, the court held that the indictment was not defective; distinguishing State v. Abshire, 363 N.C. 322 (2009), the court rejected the defendant’s argument that the indictment was defective because it alleged that he failed to register his change of address with the sheriff’s office within three days, rather than within three business days).
In a case where the defendant, a sex offender, was charged with violating G.S. 14-208.11 by failing to provide timely written notice of a change of address, the court held that the indictment was not defective. Distinguishing State v. Abshire, 363 N.C. 322 (2009), the court rejected the defendant’s argument that the indictment was defective because it alleged that he failed to register his change of address with the sheriff’s office within three days, rather than within three business days.
Indictments charging the defendant with failing register under G.S. 14-208.11(a)(2) and (a)(7) were not fatally defective where the indictments substantially tracked the language of the statute.
In a failure to register as a sex offender case, the indictment was not defective on grounds that did not allege that the defendant failed to provide “written notice” of his address change “within three business days.” Citing prior case law, the court noted that it has already rejected arguments. The court followed this case law, refusing “to subject the indictment to hyper technical scrutiny.” It further noted that the defendant did not establish that this pleading issue prejudiced his trial preparation. Finally, it noted that the better practice would be for the prosecution to allege that the defendant failed to report his change in address “in writing” and “within three business days.”
An indictment charging failing to notify the sheriff of a change in address was not defective. The indictment alleged, in relevant part, that the defendant “fail[ed] to register as a sex offender by failing to notify the Forsyth County Sheriff’s Office of his change of address.” The defendant argued that the indictment was defective because it failed to allege that he was required to provide “written notice” of a change of address. The court held: “we consider the manner of notice, in person or in writing, to be an evidentiary matter necessary to be proven at trial, but not required to be alleged in the indictment.”
(1) In a failing to register case the indictment was not defective. The indictment alleged that the defendant failed to provide 10 days of written notice of his change of address to “the last registering sheriff by failing to report his change of address to the Wilkes County Sheriff’s Office.” The defendant allegedly moved from Burke to Wilkes County. The court rejected the defendant’s argument that the indictment was fatally defective for not alleging that he failed to provide “in-person” notice. It reasoned that the defendant was not prosecuted for failing to make an “in person” notification, but rather for failing to give 10 days of written notice, which by itself is a violation of the statute. The court also rejected the defendant’s argument that an error in the indictment indicating that the Wilkes County Sheriff’s Office was the “the last registering sheriff” (in fact the last registering sheriff was the Burke County sheriff), invalidated the indictment. (2) The trial court did not err by allowing the State to amend the indictment and expand the dates of offense from 7 November 2012 to June to November 2012. It reasoned that the amendment did not substantially alter the charge “because the specific date that defendant moved to Wilkes County was not an essential element of the crime.”
An indictment charging the defendant with violating G.S. 14-208.18(a) (prohibiting registered sex offenders from being “[w]ithin 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors”) was not defective. The charges arose out of the defendant’s presence at a Wilkesboro public park, specifically, sitting on a bench within the premises of the park and in close proximity to the park’s batting cage and ball field. The indictment alleged, in relevant part, that the defendant was “within 300 feet of a location intended primarily for the use, care, or supervision of minors, to wit: a batting cage and ball field of Cub Creek Park located in Wilkesboro, North Carolina.” The court rejected the defendant’s argument that the indictment was defective because it failed to allege that the batting cages and ball field were located on a premise not intended primarily for the use, care, or supervision of minors.
An indictment charging failing to notify the sheriff’s office of change of address by a registered sex offender under G.S. 14-208.9 was defective where it failed to allege that the defendant was a person required to register.
Following State v. Harris, 219 N.C. App. 590 (Apr. 3, 2012) (an indictment charging the defendant with being a sex offender unlawfully on the premises of a place intended primarily for the use, care, or supervision of minors in violation of G.S. 14-208.18 was defective because it failed to allege that he had been convicted of an offense enumerated in G.S. Ch. 14 Article 7A or an offense involving a victim who was under 16 years of age at the time of the offense), the court held that the indictment at issue was defective.
An indictment charging the defendant with being a sex offender unlawfully on the premises of a place intended primarily for the use, care, or supervision of minors in violation of G.S. 14-208.18 was defective. According to the court the “essential elements” of the charged offense are that the defendant (1) knowingly is on the premises of any place intended primarily for the use, care, or supervision of minors (2) at a time when he or she was required by North Carolina law to register as a sex offender based upon a conviction for an offense enumerated in G.S. Ch. 14 Article 7A or an offense involving a victim who was under the age of 16. The court rejected the defendant’s argument that the indictment, which alleged that the defendant “did unlawfully, willfully and feloniously on the premises of Winget Park Elementary School,” was defective because it omitted any affirmative assertion that he actually went on the school’s premises. The court reasoned that although the indictment contained a grammatical error, it clearly charged the defendant with unlawfully being on the premises of the school. Next, the court rejected the defendant’s argument that the indictment was defective because it failed to allege that he knowingly went on the school’s premises. The court reasoned that the indictment’s allegation that the defendant acted “willfully” sufficed to allege the requisite “knowing” conduct. However, the court found merit in the defendant’s argument that the indictment was defective because it failed to allege that he had been convicted of an offense enumerated in G.S. Ch. 14 Article 7A or an offense involving a victim who was under 16 years of age at the time of the offense.
In this Warren County case, the Supreme Court affirmed the Court of Appeals decision finding that the second of defendant’s two kidnapping charges lacked support in the record and should have been dismissed because the rape supporting the kidnapping charge had already concluded before the events of the second kidnapping.
The two kidnapping charges against defendant arose from the rape of an 80-year-old woman in 2007. Defendant, posing as a salesman, forced his way into the victim’s home, robbed her of her cash, forced her from the kitchen into a bedroom, raped her, then tied her up and put her in a closet located in a second bedroom. The basis for the kidnapping charge at issue on appeal was tying up the victim and moving her from the bedroom where the rape occurred to the second bedroom closet. Defendant moved at trial to dismiss the charges for insufficiency of the evidence, and argued that there was no evidence in the record showing the second kidnapping occurred to facilitate the rape.
The Supreme Court agreed with the Court of Appeal majority that the record did not support the second kidnapping conviction. The court explored G.S. 14-39 and the relevant precedent regarding kidnapping, explaining that kidnapping is a specific intent crime and the state must allege one of the ten purposes listed in the statute and prove at least one of them at trial to support the conviction. Here, the state alleged “that defendant had moved the victim to the closet in the second bedroom for the purpose of facilitating the commission of rape.” Slip Op. at 30. At trial, the evidence showed that defendant moved the victim to the second bedroom “after he had raped her, with nothing that defendant did during that process having made it any easier to have committed the actual rape.” Id. Because the state only alleged that defendant moved the victim for purposes of facilitating the rape, the court found that the second conviction was not supported by the evidence in the record. The court also rejected the state’s arguments that State v. Hall, 305 N.C. 77 (1982) supported interpreting the crime as ongoing, overruling the portions of that opinion that would support interpreting the crime as ongoing. Slip Op. at 42.
Chief Justice Newby, joined by Justice Berger, dissented and would have allowed the second kidnapping conviction to stand. Id. at 45.
In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.
(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.
(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.
(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):
Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).
The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.
(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:
[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).
The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, "when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.
(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim. He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed:
[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.
Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]
(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects.
(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.
(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.
A majority of the court determined there were no reversible error in the trial and the convictions were affirmed.
Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.
In this Beaufort County case, defendant appealed jury verdicts of guilty for second degree kidnapping and assault on a female. Defendant provided three grounds for appeal, (1) denial of his motion to dismiss the kidnapping charge based upon the State’s failure to offer evidence of intent, (2) that the trial court failed to define “serious bodily injury” in jury instructions, and (3) that the statute creating assault on a female is unconstitutional.
Reviewing the first issue on appeal, the Court of Appeals explained that to prove kidnapping, the State must present sufficient evidence that defendant had specific intent to do serious bodily harm when removing or transporting the victim. The court found that the State presented substantial evidence of defendant’s intent through testimony that defendant put his car in reverse and drove away while the victim’s leg was still outside and the passenger door was open, and continued to drive while the victim pleaded with defendant to stop the car. Defendant also grabbed the victim while driving, pulling her hair and choking her. This behavior represented sufficient evidence that defendant removed the victim with intent to do serious bodily harm to justify the trial court’s denial of the motion to dismiss.
For the second issue, the Court of Appeals found that the trial court used the pattern jury instructions for first and second degree kidnapping when instructing the jury. Those instructions do not contain a definition of “serious bodily injury.” Because defendant could not supply caselaw or a statute requiring this definition in the jury instruction, the lack of a definition did not rise to the level of plain error justifying a new trial.
Defendant’s final issue argued that the statute creating assault on a female was unconstitutional due to discrimination on the basis of sex. However, defendant did not raise the issue at trial and thus the issue was not preserved for appellate review, and the Court of Appeals declined to exercise discretion under Rule 2 of the North Carolina Rules of Appellate Procedure to review the issue. The court found no error in the trial court’s judgment.
The trial court erred by allowing the State to amend a second-degree kidnapping indictment. The indictment alleged that the defendant restrained the victim for the purpose of facilitating the felony of assault inflicting serious injury. However, that offense is a misdemeanor. During trial, the State was allowed to amend the indictment to add the term “bodily” such that the crime specified was “assault inflicting serious bodily injury,” which is a felony. The court held that the State was bound by the crime alleged in the original indictment. However, the court continued, the indictment does allege false imprisonment, a lesser-included offense of kidnapping. Here, where the jury found that the defendant committed the acts as alleged in the indictment, the court vacated the judgment and remanded for entry of judgment and resentencing on the lesser-included offense of false imprisonment.
(1) Indictments charging kidnapping with respect to victims under 16 were not defective. The indictments alleged that the defendant unlawfully confined and restrained each victim “without the victim’s consent.” The court rejected the defendant’s argument that because the indictments failed to allege a lack of parental or custodial consent, they were fatally defective. The court explained:
“’[T] he victim’s age is not an essential element of the crime of kidnapping itself, but it is, instead, a factor which relates to the state’s burden of proof in regard to consent. If the victim is shown to be under sixteen, the state has the burden of showing that he or she was unlawfully confined, restrained, or removed from one place to another without the consent of a parent or legal guardian. Otherwise, the state must prove that the action was taken without his or her own consent.’” (quoting State v. Hunter, 299 N.C. 29, 40 (1980)).
The court concluded: “Because age is not an essential element of the crime of kidnapping, and whether the State must prove a lack of consent from the victim or from the parent or custodian is contingent upon the victim’s age, … the indictments … are adequate even though they allege that the victim ─ and not the parent ─ did not consent.” (2) The court rejected the defendant’s argument that there was a fatal variance between a kidnapping indictment with respect to victim D.M. and the evidence at trial. The defendant argued that the indictment alleged that D.M. was at least 16 years old but the evidence showed that D.M. was 16 at the time. The court concluded: “because D.M.’s age does not involve an essential element of the crime of kidnapping, any alleged variance in this regard could not have been fatal.”
The trial court erred by denying the defendant’s motion to dismiss a charge of first-degree kidnapping where the indictment alleged that the confinement, restraint, and removal was for the purpose of committing a felony larceny but the State failed to present evidence of that crime. Although the State is not required to allege the specific felony facilitated, when it does, it is bound by that allegation.
Although a kidnapping indictment need not allege the felony intended, if it does, the State is bound by that allegation. Here, the indictment alleged confinement and restraint for the purpose of committing murder, but the evidence showed that the confinement or restraint was for the purpose of a committing a robbery. The State was bound by the allegation and had to prove the confinement and restraint was for the purposes of premeditated and deliberate murder (it could not rely on felony-murder).
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Person Who Owned/Possessed the Property
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d 159 (2017), the court per curiam reversed for the reasons stated in the dissenting opinion below, thus holding that a larceny from a merchant indictment was not fatally defective. A majority of the panel of the Court of Appeals held that the indictment, which named the victim as “Belk’s Department Stores, an entity capable of owning property,” failed to adequately identify the victim. The court of appeals stated:
In specifying the identity of a victim who is not a natural person, our Supreme Court provides that a larceny indictment is valid only if either: (1) the victim, as named, itself imports an association or a corporation [or other legal entity] capable of owning property[;] or, (2) there is an allegation that the victim, as named, if not a natural person, is a corporation or otherwise a legal entity capable of owning property[.]” (quotations omitted).
The court of appeals further clarified: “A victim’s name imports that the victim is an entity capable of owning property when the name includes a word like “corporation,” “incorporated,” “limited,” “church,” or an abbreviated form thereof.” Here, the name “Belk’s Department Stores” does not itself import that the victim is a corporation or other type of entity capable of owning property. The indictment did however include an allegation that the store was “an entity capable of owning property.” Thus the issue presented was whether alleging that the store is some unnamed type of entity capable of owning property is sufficient or whether the specific type of entity must be pleaded. The Court of Appeals found that precedent “compel[led]” it to conclude that the charging language was insufficient. The Court of Appeals rejected the State’s argument that an indictment which fails to specify the victim’s entity type is sufficient so long as it otherwise alleges that the victim is a legal entity. The dissenting judge believed that the indictment adequately alleged the identity of the owner. The dissenting judge stated: “Given the complexity of corporate structures in today’s society, I think an allegation that the merchant named in the indictment is a legal entity capable of owning property is sufficient to meet the requirements that an indictment apprise the defendant of the conduct which is the subject of the accusation.” As noted, the Supreme Court reversed for reasons stated in the dissent.
Invoking its discretion under Rule 2 to reach the merit of the defendant’s argument, the court held, over a dissent, that the trial court erred by failing to dismiss a larceny charge due to a fatal variance between the indictment and the evidence regarding ownership of the property. The indictment alleged that the property belonged to “Andy [Stevens] and Manna Baptist Church.” Andy Stevens was the church’s Pastor. In a prior opinion in the case, the court had held that a fatal variance existed because the evidence showed that the stolen property belonged only to the church. The Supreme Court however granted discretionary review as to whether the Court of Appeals erred in invoking Rule 2 to address that issue. That court remanded to the Court of Appeals for an express determination as to whether the court would exercise its discretion to invoke Rule 2 and consider the merits of the fatal variance claim. Following these instructions, the court determined that in this “unusual and extraordinary case” it would exercise its discretion to employ Rule 2 and consider the merits of the defendant’s fatal variance claim. Turning to the merits, the court adopted its analysis in its earlier decision in the case and held—again—that a fatal variance occurred. Specifically, although the indictment alleged that the property was owned by both Andy Stevens and the church, the evidence established that the property was owned only by the church. The court reiterated the principle that if the State fails to present evidence of a property interest of some sort in both owners alleged in the indictment, a fatal variance occurs. Here, the evidence did not show that Pastor Stevens held title or had any type of ownership interest in the stolen property.
Reversing the decision below, State v. Campbell, 234 N.C. App. 551 (2014), the court held that a larceny indictment was not fatally flawed even though it failed to specifically allege that a church, the co-owner of the property at issue, was an entity capable of owning property. The indictment named the victim as Manna Baptist Church. The court held: “[A]lleging ownership of property in an entity identified as a church or other place of religious worship, like identifying an entity as a ‘company’ or ‘incorporated,’ signifies an entity capable of owning property, and the line of cases from the Court of Appeals that has held otherwise is overruled.”
In this Graham County case, defendant appealed the denial of his motion for appropriate relief (MAR) due to a flaw in the indictment, arguing that the indictment failed to allege a legal entity capable of owning property. The Court of Appeals affirmed the denial of defendant’s MAR.
The basis of defendant’s argument arose from his conviction for breaking and entering, felony larceny, and felony possession of goods in 1994, after defendant stole a television, VCR, and microwave from what the indictment identified as “Graham County Schools,” with the additional location identified as “Robbinsville Elementary School.” When defendant was subsequently indicted in 2020 for possession of stolen goods or property and safecracking, and attaining habitual felon status, defendant filed a MAR. Defendant argued that “Graham County Schools” was not a legal entity; the trial court denied the MAR, finding that “Graham County Schools” implied the actual ownership of “Graham County Board of Education.” Slip Op. at 2-3.
The court explained that North Carolina law does require identification of an entity capable of owning property, but “larceny indictments have been upheld where the name of the entity relates back or ‘imports’ an entity that can own property.” Id. at 5. Referencing State v. Ellis, 368 N.C. 342 (2015), the court noted that a larceny indictment listing “North Carolina State University” was upheld although the statute only identifies N.C. State University as a constituent institution of the University of North Carolina. Slip Op. at 6. Here, the court found that “Graham County Schools” similarly imported the Graham County Board of Education.
An indictment charging the defendant with felony larceny was not defective. The indictment alleged that the victim was “Sears Roebuck and Company.” The defendant argued that although the indictment contains the word “company,” it does not identify the victim as a company or other corporate entity. The Court disagreed. Noting prior case law holding defective an embezzlement indictment which alleged the victim’s name as “The Chuck Wagon,” the court noted that in this case the word “company” is part of the name of the property owner, “Sears Roebuck and Company.” It noted that that the words corporation, incorporated, limited, or company, or their abbreviated form sufficiently identify a corporation in an indictment.
The court rejected the defendant’s argument that there was a fatal variance between the indictment for misdemeanor larceny and the evidence at trial. Specifically, the defendant argued that there was a fatal variance between the allegation that he stole a checkbook from Glenn Cox and the evidence at trial, which showed that the checkbook belonged to Cox Auto Salvage. The court noted that a larceny indictment must allege a person who has a property interest in the stolen item, and that the State must prove that person has ownership, meaning title to the property or some special property interest. As to the case at hand, it concluded:
While there is no evidence tending to show Glenn Cox was the actual owner of Cox Auto Salvage, there is ample evidence indicating Cox had a special property interest in the checkbook. Cox testified the checkbook was his, had his name written on it, and contained stubs of checks he had written. Cox always kept a company checkbook, and he realized the checkbook was missing when he needed to pay a customer. We conclude this evidence establishes Cox was in exclusive possession and control of the checkbook, and that he viewed it as being his checkbook. Therefore, Cox had a special property interest in the checkbook.
Although there was a fatal variance between the allegation in a felony larceny indictment as to the owner of the stolen property and the proof of ownership presented at trial, the variance did not warrant dismissal. The indictments alleged that all of the stolen items, a television, gaming system, video games, laptop, camera, and earrings were the personal property of April Faison. The evidence at trial indicated that Faison did not own all of those items. Specifically, her daughter owned the laptop and the camera; the gaming system belonged to a friend. Although the defendant conceded that some of the items listed in the indictment correctly named Faison as property owner, he argued that a fatal variance with respect to the other items required dismissal. The State’s evidence would have been sufficient if it had established that Faison, while not the property owner, had some special interest in the items owned by others, for example, as a bailee. However, the State’s evidence did not establish that. The court also rejected the argument that Faison had a special custody interest in her child’s property because, here, her daughter was an adult who did not live in the home. Thus, while the evidence was sufficient to demonstrate that Faison was the owner of some of the property, there was a fatal variance with respect to ownership of other items. The court however went on to reject the argument that a larceny indictment that properly alleges the owner of certain stolen property, but improperly alleges the owner of additional property, must be dismissed in its entirety. Here, the problematic language was surplusage.
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however that the indictment’s failure to specify the country club as an entity capable of owning property was not fatal with respect to a separate charge of possession of stolen goods.
Exercising discretion to consider a fatal variance argument with respect to a theft of money and an iPod from a frozen yogurt shop, the court held that a fatal variance existed. The State alleged that the property belonged to Tutti Frutti, LLC, but it actually belonged to Jason Wei, the son of the sole member of that company, and the State failed to show that Tutti Frutti was in lawful custody and possession of Wei’s property when it was stolen. It clarified: “there is no fatal variance between an indictment and the proof at trial if the State establishes that the alleged owner of stolen property had lawful possession and custody of the property, even if it did not actually own the property.”
A juvenile petition alleging felony larceny was fatally defective because it contained no allegation that the alleged victim, the Crossings Golf Club, was a legal entity capable of owning property.
An indictment for felonious larceny that failed to allege ownership in the stolen handgun was fatally defective.
Fatal variance in larceny indictment alleging that the stolen gun belonged to an individual named Minear and the evidence showing that it belonged to and was stolen from a home owned by an individual named Leggett. Minear had no special property interest in the gun even though the gun was kept in a bedroom occupied by both women.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Description of Property Taken
The trial court lacked jurisdiction to sentence the defendant for larceny of goods worth more than $1,000 when the indictment charged that the defendant stole “property having a value of $1,000.”
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Larceny from Merchant
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d 159 (2017), the court per curiam reversed for the reasons stated in the dissenting opinion below, thus holding that a larceny from a merchant indictment was not fatally defective. A majority of the panel of the Court of Appeals held that the indictment, which named the victim as “Belk’s Department Stores, an entity capable of owning property,” failed to adequately identify the victim. The court of appeals stated:
In specifying the identity of a victim who is not a natural person, our Supreme Court provides that a larceny indictment is valid only if either: (1) the victim, as named, itself imports an association or a corporation [or other legal entity] capable of owning property[;] or, (2) there is an allegation that the victim, as named, if not a natural person, is a corporation or otherwise a legal entity capable of owning property[.]” (quotations omitted).
The court of appeals further clarified: “A victim’s name imports that the victim is an entity capable of owning property when the name includes a word like “corporation,” “incorporated,” “limited,” “church,” or an abbreviated form thereof.” Here, the name “Belk’s Department Stores” does not itself import that the victim is a corporation or other type of entity capable of owning property. The indictment did however include an allegation that the store was “an entity capable of owning property.” Thus the issue presented was whether alleging that the store is some unnamed type of entity capable of owning property is sufficient or whether the specific type of entity must be pleaded. The Court of Appeals found that precedent “compel[led]” it to conclude that the charging language was insufficient. The Court of Appeals rejected the State’s argument that an indictment which fails to specify the victim’s entity type is sufficient so long as it otherwise alleges that the victim is a legal entity. The dissenting judge believed that the indictment adequately alleged the identity of the owner. The dissenting judge stated: “Given the complexity of corporate structures in today’s society, I think an allegation that the merchant named in the indictment is a legal entity capable of owning property is sufficient to meet the requirements that an indictment apprise the defendant of the conduct which is the subject of the accusation.” As noted, the Supreme Court reversed for reasons stated in the dissent.
An indictment charging the defendant with larceny from a merchant by removal of antitheft device in violation of G.S. 14-72.11 was defective in two respects. The elements of this offense include a larceny (taking the property of another, carrying it away, without the consent of the possessor, and with the intent to permanently deprive) and removal of an antishoplifting or inventory control device. In this case, the defendant was alleged to have taken clothing from a department store. The court determined that the indictment’s description of the property taken as “merchandise” was “too general to identify the property allegedly taken.” Additionally, the indictment alleged that the defendant “did remove a component of an anti-theft or inventory control device . . . . in an effort to steal” property. This language, the court determined, alleged only an attempted larceny not the completed offense.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Habitual Larceny
In this habitual larceny case where the defendant was sentenced as a habitual felon, the court held that the habitual larceny indictment was not facially invalid for failure to allege all essential elements of the offense. The defendant argued that the habitual larceny indictment was facially invalid because it did not specifically allege that he was represented by counsel or had waived counsel in the proceedings underlying each of his prior larceny convictions. G.S. 14-72(b)(6) provides that a conviction for a larceny offense may not be used as a prior conviction for purposes of elevating misdemeanor larceny to felony habitual larceny unless the defendant was represented by counsel or waived counsel. Reviewing the structure of G.S. 14-72(b)(6), the North Carolina Supreme Court’s definition of the elements of the offense in a prior case, and the availability to defendants of information regarding their counsel when they obtained prior convictions, the court held that representation by or waiver of counsel in connection with prior larceny convictions is not an essential element of felony habitual larceny and thus need not be alleged in an indictment for that offense. Because representation by or waiver of counsel is not an essential element of the offense, the court also rejected the defendant’s related sufficiency of the evidence argument.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Possession of Stolen Property
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however that the indictment’s failure to specify the country club as an entity capable of owning property was not fatal with respect to a separate charge of possession of stolen goods.
An indictment alleging possession of stolen property was defective where it failed to allege that the property was stolen or that the defendant knew or had reason to believe that it was stolen.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Embezzlement & Larceny by Employee
An embezzlement indictment was not fatally defective. The indictment alleged that the defendant:
unlawfully, willfully and feloniously did embezzle three thousand nine hundred fifty seven dollars and eighty one cents ($3,957.81) in good and lawful United States currency belonging to AMPZ, LLC d/b/a Interstate All Battery Center. At the time the defendant was over 16 years of age and was the employee of AMPZ, LLC d/b/a Interstate All Battery Center and in that capacity had been entrusted to receive the property described above and in that capacity the defendant did receive and take into her care and possession that property.
The defendant argued that the indictment failed to allege that she acted with fraudulent intent. The court determined that “the concept of fraudulent intent is already contained within the ordinary meaning of the term ‘embezzle,’” as used in the indictment. The court noted that the defendant did not argue that she was prejudiced in her ability to prepare a defense because of this issue. It further noted that to convict the defendant of embezzlement, the State must prove that she fraudulently or knowingly and willfully misapplied or converted the property. Here, the indictment can fairly be read to allege that the defendant “knowingly and willfully” embezzled from her employer.
The court also rejected the argument that the indictment was defective for failing to specify the acts constituting embezzlement. The indictment alleges that the defendant embezzled a specific sum of money entrusted to her in a fiduciary capacity as an employee of the company. The court “fail[ed] to see how these allegations would not adequately apprise Defendant as to the charges facing her or prejudice her ability to prepare a defense.”
There was no fatal variance in a larceny by employee indictment where the indictment alleged that the defendant’s employer was “Precision Auto Care, Inc. (PACI), a corporation” but the evidence at trial showed the actual name of the corporation to be “Precision Franchising, Inc.” doing business as “Precision Tune Auto Care.” The court noted in part: “Our courts have repeatedly held that minor variations between the name of the corporate entity alleged in the indictment and the evidence presented at trial are immaterial, so long as [t]he defendant was adequately informed of the corporation which was the accuser and victim. A variance will not be deemed fatal where there is no controversy as to who in fact was the true owner of the property.” The court noted that the variation in names did not impair the defendant’s ability to defend against the charges.
The trial court did not err by allowing the State to amend an embezzlement indictment. The indictment originally alleged that “the defendant . . . was the employee of MBM Moving Systems, LLC . . . .” The amendment added the words “or agent” after the word “employee.” The court rejected the defendant’s argument that the nature of his relationship to the victim was critical to the charge and thus that the amendment substantially altered the charge. The court held that the terms “employee” and “agent” “are essentially interchangeable” for purposes of this offense. The court noted that the defendant was not misled or surprised as to the charges against him.
In an embezzlement case, no fatal variance occurred where the indictment alleged that Smokey Park Hospitality, Inc., d/b/a Comfort Inn had an interest in the property. Although the evidence showed that Smokey Park Hospitality never owned the hotel, it acted as a management company and ran the business. Smokey Park Hospitality thus had a special property interest in the embezzled money.
(1) In a larceny by employee case, the trial court erred by allowing the State to amend the bill of indictment. The indictment stated that the defendant was an employee of “Cape Fear Carved Signs, Incorporated.” The State moved to amend by striking the word “Incorporated,” explaining that the business was a sole proprietorship of Mr. Neil Schulman. The amendment was a substantial alteration in the charge. (2) The court rejected the State’s argument that the defendant waived his ability to contest the indictment by failing to move to dismiss it at trial, reiterating that jurisdictional issues may be raised at any time.
In this Yadkin County case, a defendant pled guilty to second-degree murder, attempted robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon in 2013. The defendant filed a motion for appropriate relief asserting that the indictment for the attempted robbery charge was fatally defective in that it did not include the name of a victim, but rather described the victims as “employees of the Huddle House” located at a particular address. The trial court denied the motion. A divided panel of the Court of Appeals agreed with the defendant. State v. Oldroyd, 271 N.C. App. 544 (2020). The Supreme Court reversed the Court of Appeals, concluding that the indictment sufficiently informed the defendant of the crime he was accused of and protected him from being twice put in jeopardy for the same offense. The Court rejected the defendant’s argument, based on cases decided before the enactment of the Criminal Procedure Act of 1975, that indictments for crimes against a person must “state with exactitude” the name of a person against whom the offense was committed. The Court also distinguished prior cases finding indictments defective when they named the wrong victim or did not name any victim at all. Under the modern requirements of G.S. 15A-924(a)(5), the Court concluded that the attempted robbery with a dangerous weapon charge here was not defective. Therefore, the Court reversed the Court of Appeals and reinstated the trial court order denying the defendant’s motion for appropriate relief.
Affirming an unpublished opinion of the Court of Appeals, the court held that a robbery indictment was fatally defective. The indictment alleged, in relevant part, that the defendant committed the bank robbery “by way of reasonably appearing to the [named] victim . . . that a dangerous weapon was in the defendant’s possession, being used and threatened to be used by communicating that he was armed to her in a note.” The Court of Appeals had held that the indictment was defective because it failed to name any dangerous weapon that the defendant allegedly employed. The Supreme Court noted that an essential element of armed robbery is that the defendant possessed, used, or threatened use of a firearm or other dangerous weapon. Here, the indictment does not adequately allege this element. The court instructed: an armed robbery indictment “must allege the presence of a firearm or dangerous weapon used to threaten or endanger the life of a person.”
In an appeal from a conviction obtained in the Eve Carson murder case, the court held that a robbery indictment was not fatally defective. The indictment alleged that the defendant:
unlawfully, willfully and feloniously did steal, take, and carry away and attempt to steal, take and carry away another’s personal property, A 2005 TOYOTA HIGHLANDER AUTOMOBILE (VIN: JTEDP21A250047971) APPROXIMATE VALUE OF $18,000.00; AND AN LP FLIP PHONE, HAVING AN APPROXIMATE VALUE OF $100.00: AND A BANK OF AMERICA ATM CARD, HAVING AN APPROXIMATE VALUE OF $1.00; AND APPROXIMATELY $700.00 IN U.S. CURRENCY of the value of $18,801.00 dollars, from the presence, person, place of business, and residence of ______________________________. The defendant committed this act having in possession and with the use and threatened use of firearms and other dangerous weapons, implements, and means, A SAWED OFF HARRINGTON & RICHARDSON TOPPER MODEL 158, 12 GAUGE SHOTGUN (SERIAL # L246386) AND AN EXCAM GT-27 .25 CALIBER SEMI-AUTOMATIC PISTOL (SERIAL # M11062) whereby the life of EVE MARIE CARSON was endangered and threatened.
The defendant argued that the indictment was defective because it failed to name the person from whose presence property was taken. The court reasoned that Carson’s life could not have been endangered and threatened unless she was the person in the presence of the property.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Frauds & Related Offenses > Obtaining Property By False Pretenses
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 802 S.E.2d 508 (2017), the court reversed, holding that the obtaining property by false pretenses indictment was not defective and that the evidence was sufficient to sustain the conviction on that charge.
(1) The obtaining property by false pretenses indictment, that described the property obtained as “United States Currency” was not fatally defective. The indictment charged the defendant with two counts of obtaining property by false pretenses, alleging that the defendant, through false pretenses, knowingly and designedly obtained “United States Currency from Cash Now Pawn” by conveying specifically referenced personal property, which he represented as his own. The indictment described the personal property used to obtain the money as an Acer laptop, a Vizio television, a computer monitor, and jewelry. An indictment for obtaining property by false pretenses must describe the property obtained in sufficient detail to identify the transaction by which the defendant obtained money. Here, the indictment sufficiently identifies the crime charged because it describes the property obtained as “United States Currency” and names the items conveyed to obtain the money. As such, the indictment is facially valid; it gave the defendant reasonable notice of the charges against him and enabled him to prepare his defense. The transcript makes clear that the defendant was not confused at trial regarding the property conveyed. Had the defendant needed more detail to prepare his defense, he could have requested a bill of particulars. In so holding the court rejected the defendant’s argument that the indictment was fatally defective for failing to allege the amount of money obtained by conveying the items.
(2) The State presented sufficient evidence of the defendant’s false representation that he owned the stolen property to support his conviction for obtaining property by false pretenses. The pawnshop employee who completed the transaction verified the pawn tickets, which described the conveyed items and contained the defendant’s name, address, driver’s license number, and date of birth. The tickets included language explicitly stating that the defendant was “giving a security interest in the . . . described goods.” On these facts, the State presented sufficient evidence of the defendant’s false representation that he owned the stolen property that he conveyed.
(per curiam). Because the participating Justices were equally divided, the decision below, State v. Pendergraft, 238 N.C. App. 516 (Dec. 31, 2014), was left undisturbed and without precedential value. In the decision below the court of appeals had held, over a dissent, that an indictment alleging obtaining property by false pretenses was not fatally defective. After the defendant filed false documents purporting to give him a property interest in a home, he was found to be occupying the premises and arrested. The court of appeals rejected the defendant’s argument that the indictment was deficient because it failed to allege that he made a false representation. The indictment alleged that the false pretense consisted of the following: “The defendant moved into the house … with the intent to fraudulently convert the property to his own, when in fact the defendant knew that his actions to convert the property to his own were fraudulent.” Acknowledging that the indictment did not explicitly charge the defendant with having made any particular false representation, the court of appeals found that it “sufficiently apprise[d] the defendant about the nature of the false representation that he allegedly made,” namely that he falsely represented that he owned the property as part of an attempt to fraudulently obtain ownership or possession of it. The court of appeals also rejected the defendant’s argument that the indictment was defective in that it failed to allege the existence of a causal connection between any false representation by him and the attempt to obtain property, finding the charging language sufficient to imply causation.
(1) Affirming the decision below in State v. Jones, 223 N.C. App. 487 (Nov. 20, 2012), the court held that an indictment charging obtaining property by false pretenses was defective where it failed to specify with particularity the property obtained. The indictment alleged that the defendant obtained “services” from two businesses but did not describe the services. (2) The court also held that an indictment charging trafficking in stolen identities was defective because it did not allege the recipient of the identifying information or that the recipient’s name was unknown.
An indictment charging obtaining property by false pretenses was defective where it charged the defendant with obtaining an unspecified amount of “credit” secured through the issuance of an unidentified “loan” or “credit card.” This vague language failed to describe what was obtained with sufficient particularity to enable the defendant to adequately prepare a defense. A grand jury indicted the defendant on three counts of obtaining property by false pretenses. The indictment for the first count charged that the defendant “obtain[ed] credit, from Weyco.” The indictments for the second and third counts charged that the defendant “obtain[ed] credit, from Weyco” and that “this property was obtained by means of giving false information on an application for a loan so as to qualify for said loan which loan was made to defendant.” The court concluded:
[I]ndictments charging a defendant with obtaining “credit” of an unspecified amount, secured through two unidentified “loan[s]” and a “credit card” are too vague and uncertain to describe with reasonable certainty what was allegedly obtained, and thus are insufficient to charge the crime of obtaining property by false pretenses. “Credit” is a term less specific than money, and the principle that monetary value must at a minimum be described in an obtaining-property-by-false-pretenses indictment extends logically to our conclusion that credit value must also be described to provide more reasonable certainty of the thing allegedly obtained in order to enable a defendant adequately to mount a defense. Moreover, although the indictments alleged defendant obtained that credit through “loan[s]” and a “credit card,” they lacked basic identifying information, such as the particular loans, their value, or what was loaned; the particular credit card, its value, or what was obtained using that credit card.
It continued:
Because the State sought to prove that defendant obtained by false pretenses a $14,399 secured vehicle loan for the purchase of a Suzuki motorcycle and a $56,736 secured vehicle loan for the purchase of a Dodge truck, the indictments should have, at a minimum, identified these particular loans, described what was loaned, and specified what actual value defendant obtained from those loans. Because the State sought also to prove that defendant obtained the Credit Card by false pretenses, that indictment should have, at a minimum, identified the particular credit card and its account number, its value, and described what defendant obtained using that credit.
Over a dissent, the court held that an obtaining property by false pretenses indictment was not defective where it alleged that the defendant obtained “a quantity of U.S currency” from the defendant. The court found that G.S. 15-149 (allegations regarding larceny of money) supported its holding.
(1) In a case involving charges of obtaining property by false pretenses arising out of alleged insurance fraud, the defendant waived the issue of fatal variance by failing to raise it at trial. (2) Counsel rendered ineffective assistance by failing to move to dismiss on grounds of fatal variance. The indictment alleged that the defendant submitted fraudulent invoices for pet boarding services by Meadowsweet Pet Boarding which caused the insurance company to issue payment to her in the amount of $11,395.00. The evidence at trial, however, showed that the document at issue was a valid estimate for future services, not an invoice. Additionally, the document was sent to the insurance company three days after the company issued a check to the defendant. Therefore the insurance company’s payment could not have been triggered by the defendant’s submission of the document. Additionally, the State’s evidence showed that it was not the written estimate that falsely led the insurance company to believe that the defendant’s pets remained at Meadowsweet long after they had been removed from that facility, but rather the defendant’s oral representations made later. (3) The court rejected the defendant’s argument that false pretenses indictments pertaining to moving expenses were fatally defective because they did not allege the exact misrepresentation with sufficient precision. The indictments were legally sufficient: each alleged both the essential elements of the offense and the ultimate facts constituting those elements by stating that the defendant obtained money from the insurance company through a false representation made by submitting a fraudulent invoice which was intended to, and did, deceive the insurance company.
Indictments charging obtaining property by false pretenses were not defective. The charges arose out of the defendant’s acts of approaching two individuals (Ms. Hoenig and Ms. Harward), falsely telling them their roofs needed repair, taking payment for the work and then performing shoddy work or not completing the job. At trial, three other witnesses testified to similar incidents. On appeal, the defendant argued that the indictments failed to “intelligibly articulate” his misrepresentations. The court disagreed:
The indictments clearly state that defendant, on separate occasions, obtained property (money) from Ms. Hoenig and Ms. Harward by convincing each victim to believe that their roofs needed extensive repairs when in fact their roofs were not in need of repair at all. In each indictment, the State gave the name of the victim, the monetary sum defendant took from each victim, and the false representation used by defendant to obtain the money: by defendant “approaching [Ms. Hoenig] and claiming that her roof needed repair, and then overcharging [Ms. Hoenig] for either work that did not need to be done, or damage that was caused by the defendant[.]” As to Ms. Harward, the false representation used by defendant to obtain the money was “by . . . claiming that her shed roof needed repair, [with defendant knowing] at the time [that he] intended to use substandard materials and construction to overcharge [Ms. Harward].” Each indictment charging defendant with obtaining property by false pretenses was facially valid, as each properly gave notice to defendant of all of the elements comprising the charge, including the element defendant primarily challenges: the alleged misrepresentation (i.e., that defendant sought to defraud his victims of money by claiming their roofs needed repair when in fact no repairs were needed, and that defendant initiated these repairs but either failed to complete them or used substandard materials in performing whatever work was done).
(1) Indictments charging the defendant with obtaining property by false pretenses were not defective. The indictments alleged in part that “[t]he defendant sold bread products to the victim that were advertised and represented as Gluten Free when in fact the defendant knew at the time that the products contained Gluten.” The court rejected the argument that the indictments were defective because they failed to sufficiently allege that he himself made a false representation. (2) There was no fatal variance between an indictment alleging that the defendant obtained value from the victim and the evidence, which showed that he obtained value from the victim’s husband. Citing G.S. 14-100(a), the court concluded that because an indictment for obtaining property by false pretenses need not allege any person's ownership of the thing of value obtained, the allegation was surplusage.
Stating in dicta that an indictment alleging obtaining property by false pretenses need not identify a specific victim.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Frauds & Related Offenses > Identity Theft & Related Offenses
An indictment charging trafficking in stolen identities was defective because it did not allege the recipient of the identifying information or that the recipient’s name was unknown.
No fatal variance occurred in an identity theft case. The defendant argued that there was a fatal variance between the indictment, which alleged that he possessed credit card numbers belonging to four natural persons and the evidence, which showed that three of the credit cards were actually business credit cards issued in the names of the natural persons. The court explained: “[N]o fatal variance exists when the indictment names an owner of the stolen property and the evidence discloses that that person, though not the owner, was in lawful possession of the property at the time.” Here the victims were the only authorized users of the credit cards and no evidence suggested they were not in lawful possession of them.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Frauds & Related Offenses > Forgery
There was no fatal variance between a forgery indictment and the evidence presented at trial. The indictment charged the defendant with forgery of “an order drawn on a government unit, STATE OF NORTH CAROLINA, which is described as follows: NORTH CAROLINA UNIFORM CITATION.” The evidence showed that the defendant, who was not a law enforcement officer, issued citations to several individuals. The court rejected the defendant’s arguments that the citations were not “orders” and were not “drawn on a government unit” because he worked for a private police entity.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Burglary and Related Offenses
There was no fatal variance in a possession of burglar’s tools indictment. The indictment identified the tools as a prybar and bolt cutters. The trial court instructed the jury that it could find the defendant guilty if he possessed either a prybar, bolt cutters, or work gloves. The court held that the indictment’s identification of the specific tools was mere surplusage.
Although the trial court erred when instructing the jury on first-degree burglary, no plain error occurred. The first-degree burglary indictment alleged that the defendant entered the dwelling with intent to commit larceny. The trial court instructed the jury that it could find the defendant guilty if at the time of the breaking and entering he intended to commit robbery with a dangerous weapon. Citing State v. Farrar, 361 N.C. 675 (2007) (burglary indictment alleged larceny as underlying felony but jury instructions stated that underlying felony was armed robbery; reviewing for plain error, the court held that the defendant had not been prejudiced by the instruction; because larceny is a lesser-included of armed robbery, the jury instructions benefitted defendant by adding an additional element for the State to prove), the court found that the defendant was not prejudiced by the error.
A burglary indictment alleging that the defendant intended to commit “unlawful sex acts” was not defective.
(1) An indictment for breaking or entering a motor vehicle alleging that the vehicle was the personal property of “D.L. Peterson Trust” was not defective for failing to allege that the victim was a legal entity capable of owning property. The indictment alleged ownership in a trust, a legal entity capable of owning property. (2) Because the State indicted the defendant for breaking or entering a motor vehicle with intent to commit larceny therein, it was bound by that allegation and had to prove that the defendant intended to commit larceny.
(1) Although the State is not required to allege the felony or larceny intended in an indictment charging breaking or entering a vehicle, if it does so, it will be bound by that allegation. (2) An indictment properly alleges the fifth element of breaking and entering a motor vehicle—with intent to commit a felony or larceny therein—by alleging that the defendant intended to steal the same motor vehicle.
A burglary indictment does not need to identify the felony that the defendant intended to commit inside the dwelling.
No fatal variance existed when a burglary indictment alleged that defendant broke and entered “the dwelling house of Lisa McCormick located at 407 Ward’s Branch Road, Sugar Grove Watauga County” but the evidence at trial indicated that the house number was 317, not 407. On this point, the court followed State v. Davis, 282 N.C. 107 (1972) (no fatal variance where indictment alleged that the defendant broke and entered “the dwelling house of Nina Ruth Baker located at 840Washington Drive, Fayetteville, North Carolina,” but the evidence showed that Ruth Baker lived at 830 Washington Drive). The court also held that the burglary indictment was not defective on grounds that it failed to allege that the breaking and entering occurred without consent. Following, State v. Pennell, 54 N.C. App. 252 (1981), the court held that the indictment language alleging that the defendant “unlawfully and willfully did feloniously break and enter” implied a lack of consent.
The trial court committed plain error in this safecracking case by instructing the jury that it could convict the defendant if it determined that he obtained the safe combination “by surreptitious means” when the indictment charged that he committed the offense by means of “a fraudulently acquired combination.” One essential element of the crime is the means by which the defendant attempts to open a safe. Here, there was no evidence that the defendant attempted to open the safe by the means alleged in the indictment.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Trespass & Injury to Property Offenses
On discretionary review of a unanimous decision of the Court of Appeals, 240 N.C. App. 264 (2015), the court reversed, holding that an indictment charging the defendant with injury to real property “of Katy’s Great Eats” was not fatally defective. The court rejected the argument that the indictment was defective because it failed to specifically identify “Katy’s Great Eats” as a corporation or an entity capable of owning property, explaining: “An indictment for injury to real property must describe the property in sufficient detail to identify the parcel of real property the defendant allegedly injured. The indictment needs to identify the real property itself, not the owner or ownership interest.” The court noted that by describing the injured real property as “the restaurant, the property of Katy’s Great Eats,” the indictment gave the defendant reasonable notice of the charge against him and enabled him to prepare his defense and protect against double jeopardy. The court also rejected the argument that it should treat indictments charging injury to real property the same as indictments charging crimes involving personal property, such as larceny, embezzlement, or injury to personal property, stating:
Unlike personal property, real property is inherently unique; it cannot be duplicated, as no two parcels of real estate are the same. Thus, in an indictment alleging injury to real property, identification of the property itself, not the owner or ownership interest, is vital to differentiate between two parcels of property, thereby enabling a defendant to prepare his defense and protect against further prosecution for the same crime. While the owner or lawful possessor’s name may, as here, be used to identify the specific parcel of real estate, it is not an essential element of the offense that must be alleged in the indictment, so long as the indictment gives defendant reasonable notice of the specific parcel of real estate he is accused of injuring.
The court further held that to the extent State v. Lilly, 195 N.C. App. 697 (2009), is inconsistent with its opinion, it is overruled. Finally, the court noted that although “[i]deally, an indictment for injury to real property should include the street address or other clear designation, when possible, of the real property alleged to have been injured,” if the defendant had been confused as to the property in question, he could have requested a bill of particulars.
Upon trial de novo in superior court, the defendant in this case was convicted of misdemeanor injury to personal property for throwing a balloon filled with black ink onto a painting during a protest at an arts event in Asheville. The defendant received a suspended 30-day sentence and was ordered to pay $4,425 in restitution. On appeal, the defendant argued that her motion to dismiss the injury to personal property charge should have been granted due to a fatal variance, and argued that the restitution amount was improperly based on speculative value. The appellate court rejected both arguments.
The charging document alleged that the defendant had damaged the personal property of the artist, Jonas Gerard, but the evidence at trial indicated that the painting was the property of the artist’s corporation, Jonas Gerard Fine Arts, Inc., an S corporation held in revocable trust, where Jonas Gerard was listed as both an employee and the sole owner. Although this evidence established that the artist and the corporation were separate legal entities, each capable of owning property, the court held that the state’s evidence sufficiently demonstrated that the artist named in the pleading was nevertheless a person who had a “special interest” in the property and was therefore properly named in the charging instrument. The painting was not yet complete, it was still in the artist’s possession at the time it was damaged, and the artist regarded himself and the corporation as functionally “one and the same” and he “certainly held out the paintings as his own.” Finding the facts of this case analogous to State v. Carr, 21 N.C. App. 470 (1974), the appellate court held that the charging document was “sufficient to notify Defendant of the particular piece of personal property which she was alleged to have damaged,” and the trial court did not err in denying the motion to dismiss for a fatal variance.
The restitution amount was also supported by competent evidence. A witness for the state testified that a potential buyer at the show asked what the painting would cost when completed and was told $8,850, which was the gallery’s standard price for paintings of that size by this artist. The artist also testified that the canvas was now completely destroyed, and the black ink could not be painted over. The trial court ordered the defendant to pay half that amount as restitution. The appellate court held that the fact that the painting “had not yet been purchased by a buyer does not mean that the market value assigned by the trial court for restitution was speculative.” The evidence presented at trial was sufficient to establish a fair market value for the painting prior to it being damaged, and the trial court’s restitution order would not be disturbed on appeal.
In a case where a juvenile was found to be delinquent based on the offense of injury to personal property with respect to a school printer, the trial court did not err by denying the juvenile’s motion to dismiss. The petition alleged that the juvenile damaged a printer owned by the “Charlotte Mecklenburg Board of Education[.]” The juvenile argued that the trial court erred by denying the motion to dismiss because the petition failed to allege that the school was an entity capable of owning property and that the evidence at trial did not prove who owned the printer. The court held that because the juvenile conceded the fact that the school was an entity capable of owning property and the State presented evidence that the school owned the printer, the trial court did not err by denying the motion. The court noted that the juvenile’s counsel expressly acknowledged to the trial court that the Charlotte-Mecklenburg Board of Education is an entity capable of owning property. The court also noted that because the juvenile did not contest this issue at trial, it could not be raised for the first time on appeal. As to the evidence, the State presented a witness who testified to ownership of the printer. A concurring judge recognized that with respect to the petition’s failure to plead that the owner was an entity capable of owning property, had the pleading been an indictment, the issue could be raised for the first time on appeal. However, the concurring judge concluded that the owner’s capability of owning property does not need have been pleaded in a petition with the same specificity as in an indictment.
(1) There was no fatal defect in an indictment charging the defendant with injury to personal property. The defendant asserted that the indictment was invalid because it failed to allege that the owner, a church, as an entity capable of owning property. In State v. Campbell, 368 N.C. 83 (2015), the Supreme Court held that alleging ownership of property in an entity identified as a church or other place of religious worship is sufficient to allege an entity capable of owning property. Here, count one of the indictment alleged breaking or entering a place of religious worship and identified the church expressly as “a place of religious worship.” The count alleging injury to personal property simply referred to the church by name. The court found that identifying the church as a place of religious worship in the first count and subsequently listing the church as the owner of the personal property in a later count was sufficient. A contrary ruling, requiring the church to be identified as a place of worship in each portion of the indictment, “would constitute a hypertechnical interpretation of the requirements for indictments.” (2) By failing to assert a claim of fatal variance between the indictment and the evidence with respect to a charge of injury to personal property, the defendant failed to preserve the issue for appellate review. Nevertheless, the court considered the issue and rejected the defendant’s claim. The indictment alleged that the defendant injured the personal property of the church, specifically a lock on a door. The defendant asserted that the evidence showed that the damaged device was owned not by the church but rather by the lessor of the property. The court concluded however that the evidence was sufficient to allow the jury to find that the church owned the lock and that it was damaged.
The court rejected the defendant’s fatal variance argument regarding injury to real property charges, noting that the North Carolina Supreme Court recently held that an indictment charging this crime need only identify the real property, not its owner.
In this burning of personal property case where the indictment charged that the defendant set fire to the victim’s bed, jewelry, and clothing and the evidence showed only that he set fire to her bedding, no fatal variance occurred. The State was not required to show that the defendant also set fire to her jewelry and clothing. The court rejected the defendant’s argument that there was a fatal variance between the indictment’s allegation that he set fire to her bed and the evidence, which showed he set fire to her bedding. Any variance in this regard was not material, given that there was no evidence that the “bedding” was found anywhere other than on the bed. It concluded: “we are unable to discern how Defendant was unfairly surprised, misled, or otherwise prejudiced in the preparation of his defense by the indictment’s failure to identify the ‘bedding’ rather than the ‘bed.’”
No fatal variance between an indictment charging injury to real property and the evidence at trial. The indictment incorrectly described the lessee of the real property as its owner. The indictment was sufficient because it identified the lawful possessor of the property.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Resisting an Officer, Obstruction & Related Offenses > Resisting An Officer
A confidential informant called the local police department, describing the defendant’s appearance and stating that the defendant would be at a certain location with a significant amount of methamphetamine in his bookbag. When the officers arrived at the scene, they found the defendant, matching the description, and sitting down with a bag and a knife. The officers asked the defendant if he had anything on him, to which the defendant responded he had marijuana in his pocket. After the officers retrieved the marijuana, the bag, and the knife, the defendant ran and was quickly apprehended by the officers.
At trial, the defendant stipulated that his book bag contained methamphetamine and heroin. The defendant moved to dismiss at the close of the State’s evidence and again at the close of all evidence, both of which were denied. The defendant was found guilty of possession with intent to sell and deliver methamphetamine, possession of heroin, misdemeanor possession of marijuana, possession of drug paraphernalia, resisting a public officer, and attaining habitual felon status.
On appeal, the defendant argued that the trial court erred when it denied his motion to dismiss the charge for resisting a public officer because there was a fatal variance between the indictment allegation and the evidence. Specifically, the indictment alleged that at the time of the defendant’s resistance, the detective was “attempting to take the defendant into custody for processing narcotics” but the evidence at trial only showed that the defendant ran from officers, including the detective, after a small amount of marijuana was seized from his person. Slip op. at ¶ 14. In rejecting the defendant’s argument, the Court of Appeals held that that an essential element of the charge of resisting a public officer is the identification of the official duty an officer was discharging or attempting to discharge at the time of a defendant’s resistance, rather than the specific basis for arrest. Thus, the Court concluded that the actual basis of arrest is not necessary to properly charge the offense of resisting a public officer.
The indictment properly charged resisting a public officer. On appeal the defendant argued that the indictment was invalid because it failed to sufficiently allege the officer’s public office. The indictment alleged that the defendant “did resist, delay and obstruct Agent B.L. Wall, a public officer holding the office of North Carolina State Law Enforcement Agent, by refusing commands to leave the premises, assaulting the officer, refusing verbal commands during the course of arrest for trespassing and assault, and continuing to resist arrest.” Count I of the indictment which charged the separate offense of assault on a government officer, identified the officer as “Agent B.L. Wall, a state law enforcement officer employed by the North Carolina Division of Motor Vehicles.” Both counts, taken together, provided the defendant sufficient information to identify the office in question.
The court also rejected the defendant’s argument that the indictment was defective because it failed to fully and clearly articulate a duty that the officer was discharging. After noting the language in Count II, the court noted that Count III, alleging trespass, asserted that the defendant remained on the premises of the specified DMV office “after having been notified not to remain there by a person in charge of the premises.” The court held that “the charges” specifically state the duties the officer was attempting to discharge, namely: commanding the defendant to leave the premises and arresting or attempting to rest her when she failed to comply.
The court went on to hold that the officer was acting within the scope of his duties at the time. It noted that G.S. 20-49.1(a) “contains an expansive grant of power,” vesting DMV inspectors with the same powers vested in law enforcement officers by statute or common law. Thus, the officer was acting under the authority given to him under the statute at the time and was acting within the scope of his duties. The court concluded: “Even though the indictment could have been be more specific, we decline to require that it be hyper-technical.”
Over a dissent, the court held that the trial court did not err by denying the defendant’s motion to dismiss a charge of resisting a public officer on grounds of fatal variance. The indictment specified that the defendant resisted by running away from the officer on foot. The evidence showed that although the defendant initially was on a moped, he continued to elude the officer on foot after the moped overturned.
There was no fatal variance in a resisting an officer case where the indictment alleged that the defendant refused to drop what was in his hands (plural) and the evidence showed that he refused to drop what was in his hand (singular). The variance was not material.
An indictment for resisting an officer was not defective. The indictment alleged that the defendant resisted “by not obeying [the officer’s] command [to stop]." The court rejected the defendant’s argument that the indictment failed to state with sufficient particularity the manner in which the defendant resisted.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Resisting an Officer, Obstruction & Related Offenses > Witness Intimidation
In this intimidating a witness case, the indictment alleged that the defendant told one person, Derstine, to tell another, Ramos, that the defendant would have Ramos deported if he testified against the defendant. Evidence at trial tended to show that Ramos did not actually receive this message. The court explained that while this was a variance between the indictment and the proof at trial, the variance did not relate to “the gist” of the offense of intimidating a witness, an offense concerned with “the obstruction of justice.” The court cited North Carolina case law establishing that whether a witness actually receives the threatening communication at issue is “irrelevant” to the crime of intimidating a witness, and, thus, the language of the indictment was mere surplusage. The court went on to determine that even if there was error in the trial court’s jury instruction on intimidating a witness, which did not deviate from the pattern jury instruction or from the instruction agreed upon by the parties, any such error was harmless as there was no reasonable likelihood that the alleged deviation misled the jury.
The State conceded that restitution ordered by the trial court lacked an evidentiary basis and the court remanded for a rehearing on the issue.
The State was not required to prove a specific case number alleged in an indictment charging deterring an appearance by a State witness in violation of G.S. 14-226(a). The case number was not an element of the offense and the allegation was mere surplusage.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Resisting an Officer, Obstruction & Related Offenses > Unlicensed Bail Bonding
This Harnett County case involved a husband and wife who indemnified a bond on behalf of an employee. The employee was roommates with the couple’s son. When the employee disappeared, the family members forcibly apprehended him, causing a traffic accident and apparently discharging a gun. The three defendants were charged with various offenses, including acting as unlicensed bail bondsmen or runners. (1) Two of the defendants failed to preserve their argument that the evidence was insufficient to support conviction for acting as an unlicensed bail bondsman or runner. Trial counsel for the defendants moved to dismiss some of the offenses but failed to make any motion as to all charges generally, or as to the charge of acting as an unlicensed bondsman specifically. While a motion to dismiss a charge preserves all sufficiency issues pursuant to State v. Golder, 374 N.C. 238 (2020) (discussed here), where there is no motion to dismiss as to a specific charge, appellate review of the sufficiency of evidence for that offense is waived under Rule 10(a)(3) of the North Carolina Rules of Appellate Procedure. For the same reason, one of the defendant’s arguments regarding an alleged fatal variance between the indictment and the jury instructions was waived on appeal.
[A]ny fatal variance argument is, essentially, an argument regarding the sufficiency of the State’s evidence. . .[A]s [the defendant’s] argument fundamentally presents an issue ‘related to the sufficiency of the evidence’ that he did not ‘mov[e] to dismiss at the proper time’, he has waived appellate review of this issue. Slip op. at 17.
The court declined to suspend the Rules of Appellate Procedure under Rule 2 to consider the merits of the arguments.
(2) The trial court admitted into evidence a recording of a 911 call where the caller stated that a defendant hit the victim’s truck with his vehicle “on purpose.” On appeal, the defendant argued this evidence amounted to improper lay opinion testimony. Trial counsel objected to this evidence at the time on hearsay and confrontation grounds but did not argue improper lay opinion. This argument was therefore waived on appeal. This defendant also failed to “specifically and distinctly” raise this argument for plain error review on appeal, and the court declined to review it. The court observed that purported violations of Rule 701 are reviewed for abuse of discretion and that plain error has not previously been applied to discretionary decisions of the trial court.
(3) Several other issues turned on whether the defendants could be considered sureties or accommodation bondsmen. Two of the defendants claimed error in the trial court’s refusal to instruct on a defense of lawful action by a surety; one defendant claimed a fatal defect in the indictment for failure to charge a crime; and one defendant claimed that a motion to dismiss for insufficiency as to a kidnapping conviction should have been granted based on the lawful authority of a surety to confine or restrain the subject of the bond. Article 71 of Chapter 58 of the General Statutes of North Carolina regulates the bail bond industry. The husband and wife argued that they met the definition of a surety in G.S. 58-71-1(10) as ones liable on the bail bond in the event of bail forfeiture. As a result, they argued that the common law right of sureties to arrest a principal on the bond who fail to appear justified their actions. The court rejected this argument, finding that the definition of surety in Chapter 15A of the General Statutes controls when the two definitions conflict, pursuant to G.S. 58-71-195 (so stating). Under that definition, the professional bondsman who posted the bond was the surety, but the defendants were not. While the husband-and-wife-defendants were liable to the professional bondsman if the bond were to be forfeited as indemnitors, they would not be liable to the State. “Simply put, agreeing to indemnify a bond does not a surety make.” Gettleman Slip op. at 26. The court also rejected the alternative argument by one of the defendants that she qualified as an accommodation bondman for the same reason—the defendant did not qualify as a surety on the bond. “We conclude that Defendants did not act lawfully, either as sureties or as accommodation bondsmen. Accordingly, we overrule Defendants’ issues brought on this basis.” Id. at 27. The unanimous court therefore affirmed all of the convictions.
There was no fatal defect in an indictment charging the defendant with misdemeanor unlicensed bail bonding in violation of G.S. 58-71-40. The indictment alleged that the defendant “did act in the capacity of, and performed the duties, functions, and powers of a surety bondsman and runner, without being qualified and licensed to do so. This act was done in violation of N.C.G.S. 58-71-40.” Where, as here, the language of the indictment is couched in the language of the statute it is sufficient to charge the offense. The court rejected the defendant’s argument that the indictment was defective because it failed to specify the exact manner in which he allegedly violated the statute.
Because misdemeanor larceny and simple assault are lesser included offenses of common law robbery, the trial court erred by sentencing the defendant for all three offenses. The court rejected the State’s argument that the defendant was not prejudiced by this error because all three convictions were consolidated for judgment and the defendant received the lowest possible sentence in the mitigated range. The court noted that the State’s argument ignores the collateral consequences of the judgment. The court thus arrested judgment on the convictions for misdemeanor larceny and simple assault.
A statement of charges, alleging that the defendant engaged in disorderly conduct in or near a public building or facility sufficiently charged the offense. Although the statute uses the term “rude or riotous noise,” the charging instrument alleged that the defendant did “curse and shout” at police officers in a jail lobby. The court found that the charging document was sufficient, concluding that “[t]here is no practical difference between ‘curse and shout’ and ‘rude or riotous noise.’”
The superior court lacked jurisdiction to try the defendant for possession of lottery tickets in violation of G.S. 14-290. An officer issued the defendant a citation for violating G.S. 14-291 (acting as an agent for or on behalf of a lottery). The district court allowed the charging document to be amended to charge a violation of G.S. 14-290. The defendant was convicted in district court, appealed, and was again convicted in superior court. The court held that the district court improperly allowed the charging document to be amended to charge a different crime.
The indictment properly charged the defendant with burning of a building in violation of G.S. 14-62. The indictment alleged that the “defendant . . . unlawfully, willfully and feloniously did set fire to, burn, cause to be burned and aid the burning” of a specified building. The court rejected the defendant’s argument that the indictment was defective because it did not allege that the defendant acted “wantonly,” noting that North Carolina courts have held that the terms “willfully” and “wantonly” are essentially the same.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Carrying Concealed
No fatal variance between indictment and the evidence in a carrying a concealed weapon case. After an officer discovered that the defendant was carrying knives and metallic knuckles, the defendant was charged with carrying a concealed weapon. The indictment identified the weapon as “a Metallic set of Knuckles.” The trial court instructed the jury concerning “one or more knives.” The court, per curiam and without an opinion, summarily affirmed the ruling of the North Carolina Court of Appeals that the charging language, “a Metallic set of Knuckles,” was unnecessary surplusage, and even assuming the trial court erred in instructing on a weapon not alleged in the charge, no prejudicial error required a reversal where there was evidence that the defendant possessed knives.
In this Chatham County case, the Court of Appeals overturned defendant’s conviction for possession of a firearm at a demonstration, finding that the indictment failed to specify the type of land where the violation took place.
Defendant attended a protest in Hillsborough over the removal of a confederate monument in 2019. During the protest, an officer observed defendant carrying a concealed firearm. Defendant was indicted for violating G.S. 14-277.2, and at trial moved to dismiss the charges, arguing that the misdemeanor statement of charges was fatally defective for not specifying the type of location for the offense, specifically the required location of a private health care facility or a public place under control of the state or local government. Defendant’s motion was denied and she was convicted of the misdemeanor.
Reviewing defendant’s appeal, the court agreed with defendant’s argument that her indictment was defective. Although the state moved to amend the location in the statement of charges, and the superior court granted that motion, the Court of Appeals explained that this did not remedy the defect. The court explained that “if a criminal pleading is originally defective with respect to an essential element . . . amendment of the pleading to include the missing element is impermissible, as doing so would change the nature of the offense.” Slip Op. at 8-9. The court looked to analogous statutes and determined that the specific type of location for the offense was an essential element of G.S. 14-277.2, and that the state had failed to specify the location in either the statement of charges or the police report provided with the statement. Instead, the statement and police report simply listed the street address and described the location as “[h]ighway/[r]oad/[a]lley/[s]treet/[s]idewalk[,]” failing to specify the essential element related to the type of location. Id. at 16-17.
Judge Inman concurred only in the result.
When charging carrying a concealed gun under G.S. 14-269, the exception in G.S. 14-269(a1)(2) (having a permit) is a defense not an essential element and need not be alleged in the indictment.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Discharging Weapon Into Property
An indictment charging the defendant with discharging a weapon into an occupied dwelling was not fatally defective. The defendant argued that the indictment was defective because it charged him with discharging a weapon into occupied property causing serious bodily injury, but failed to allege that any injury resulted from the act. The court noted that the defendant’s argument was based on the indictment’s reference to G.S. 14-34.1(c) as the statute violated. However, a statutory reference in an indictment is surplusage and can be disregarded. Moreover, the body of the indictment charges the defendant with the version of the offense for which he was convicted, which does not require serious injury.
The State conceded, and the court held, that the indictment was insufficient to support a conviction for discharging a firearm within an enclosure to incite fear. The indictment improperly alleged that the defendant discharged a firearm “into” an occupied structure; the statute, G.S. 14-34.10, requires that the defendant discharge a firearm “within” an occupied building.
An indictment charging discharging a firearm into an occupied dwelling was not defective. The indictment alleged that the defendant “discharge[d] a firearm to wit: a pistol into an apartment 1727 Clemson Court, Kannapolis, NC at the time the apartment was occupied by Michael Fezza” and that the defendant violated G.S. 14-34. The defendant was convicted of discharging a weapon into an occupied dwelling in violation of G.S. 14-34.1. The court rejected the defendant’s argument that the term “apartment,” as used in the indictment, was not synonymous with the term “dwelling,” the term used in the statute. On this issue the court stated: “We refuse to subject defendant’s … indictment to hyper technical scrutiny with respect to form.” Next, the court held that although the indictment incorrectly referenced G.S. 14-34 instead of G.S. 14-34.1(b), the error was not a fatal defect.
The trial court erred by instructing the jury on the offense of discharging a firearm into a vehicle that is in operation under G.S. 14-34.1(b) where the indictment failed to allege that the vehicle was in operation. However, because the indictment properly charged discharging a firearm into an occupied vehicle under G.S. 14-34.1(a), the court vacated the conviction under G.S. 14-34.1(b) and remanded for entry of judgment under G.S. 14-34.1(a).
Fact that indictment charging discharging a barreled weapon into an occupied dwelling used the term “residence” instead of the statutory term “dwelling” did not result in a lack of notice to the defendant as to the relevant charge.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Felon in Possession
In this Haywood County case, the Supreme Court reversed a unanimous Court of Appeals decision and reinstated defendant’s conviction for possession of a firearm by a felon.
In April of 2018, defendant was pulled over for driving with a permanently revoked license. During the stop, the officer smelled marijuana; defendant admitted that he had smoked marijuana earlier but none was in the vehicle. Based on the smell and defendant’s admission, the officer decided to search the vehicle, eventually discovering two firearms. Defendant was charged in a single indictment with possession of a firearm by a felon, possession of a firearm with an altered or removed serial number, and carrying a concealed weapon. At trial, defendant did not challenge the indictment, and he was ultimately convicted of all three offenses.
On appeal, defendant argued the indictment was fatally flawed, as G.S. 14-415.1(c) requires a separate indictment for possession of a firearm by a felon. The Court of Appeals agreed, vacating defendant’s conviction based on State v. Wilkins, 225 N.C. App. 492 (2013), and holding that the statute unambiguously mandates a separate indictment for the charge.
After granting discretionary review, the Supreme Court disagreed with the Court of Appeals, explaining that “it is well-established that a court should not quash an indictment due to a defect concerning a ‘mere informality’ that does not ‘affect the merits of the case.’” Slip Op. at 6, quoting State v. Brady, 237 N.C. 675 (1953). The court pointed to its decision in State v. Brice, 370 N.C. 244 (2017), which held that failure to obtain a separate indictment required by a habitual offender statute was not a jurisdictional defect and did not render the indictment fatally defective. Applying the same reasoning to the current case, the court explained that “the statute’s separate indictment requirement is not jurisdictional, and failure to comply with the requirement does not render the indictment fatally defective.” Slip Op. at 9. The court explicitly stated that Wilkins was wrongly decided and specifically overruled. Id.
Justice Morgan dissented, and would have upheld the Court of Appeals opinion and the reasoning in Wilkinsfinding that the lack of a separate indictment required by G.S. 14-415.1(c) was a fatal defect. Id. at 11.
In this Cleveland County case, defendant appealed his conviction for aiding and abetting possession of a firearm by a felon, arguing a fatally defective indictment and error in dismissing his motion to dismiss for insufficient evidence. The Court of Appeals disagreed on both points and found no error.
Detectives in an unmarked vehicle observed a black pickup truck swerve left of the center line several times while driving, and initiated a traffic stop. Defendant was seated in the passenger seat of the truck when the detectives approached. The driver of the vehicle was known to be a felon by the detectives, and they conducted Terry frisks of defendant and the driver of the truck, finding .32 caliber ammunition in the pocket of the driver. After finding the ammunition, the detectives searched the truck, finding a handgun inside the glovebox and another hidden under the center seat, as well as magazines and ammunition around the vehicle.
Reviewing defendant’s challenge to the indictment, the Court of Appeals first explained the necessary elements of aiding and abetting another person in a crime, and the then the necessary elements of possession of a firearm by a felon. Turning to the text of the indictment, the court found all the necessary elements for the crime, overruling defendant’s argument.
The court next looked to the sufficiency of the evidence, explaining that defendant argued no proof of his intent to commit the crime, even though the elements of the offense do not include an intent requirement, because the indictment referenced his knowledge of the driver’s prior felony conviction. Looking at the evidence in the record, the court found sufficient evidence that defendant provided a firearm to the driver of the vehicle, and that defendant was aware of the driver’s prior felony conviction. This led the court to conclude sufficient evidence existed to support the conviction.
In this case involving possession of a firearm by a felon and carrying a concealed weapon, (1) binding caselaw required that the defendant’s conviction for felon in possession be vacated because the indictment was fatally defective; and (2) the trial court’s ruling on the defendant’s motion to suppress was based on improper findings of fact.
(1) G.S. 14-415.1(c) dictates that an indictment charging a defendant with possession of a firearm by a felon must be separate from any indictment charging other offenses related to or giving rise to the felon in possession charge. Here, a single indictment charged the defendant with felon in possession, possession of a firearm with an altered/removed serial number, and carrying a concealed weapon. Finding itself bound by State v. Wilkins, 225 N.C. App. 492 (2013), the court determined that the State’s failure to obtain a separate indictment for the felon in possession offense rendered the indictment fatally defective and invalid as to that offense.
(2) The court determined that the trial court’s order denying the defendant’s Fourth Amendment motion to suppress a firearm seized from the center console of his vehicle did not contain adequate findings of fact pertaining to a material conflict in the evidence of the accessibility of the firearm and consequently the trial court plainly erred in denying the motion.
An officer initiated a valid traffic stop of the defendant and searched the vehicle for marijuana based on an emanating odor. During the search, the officer felt and saw the handgrip of a pistol around the center console, arrested the defendant for carrying a concealed weapon, and then removed a plastic panel from the console to retrieve the pistol. The defendant challenged the trial court’s finding of fact that “no tools were needed” to remove the panel, a finding bearing upon the accessibility of the pistol for purposes of determining whether the officer had probable cause for the independent search of the console premised on the offense of carrying a concealed weapon. Reviewing the testimony, the court of appeals found that the finding that “no tools were needed” was not supported by the testimony at the suppression hearing and that the trial court otherwise failed to make necessary findings as to the accessibility of the pistol. Because the accessibility issue was not resolved by adequate findings, the trial court’s conclusion of law regarding probable cause was not supported and it could not properly rule on the defendant’s motion to suppress. The court remanded the case for the trial court to make further findings on the issue.
An indictment for felon in possession of a firearm was fatally defective because the charge was included as a separate count in a single indictment also charging the defendant with assault with a deadly weapon. G.S. 14-415.1(c) requires that possession of a firearm by a felon be charged in a separate indictment from other related charges.
Felon in possession indictment that listed the wrong date for the prior felony conviction was not defective, nor was there a fatal variance on this basis (indictment alleged prior conviction date of December 8, 1992 but judgment for the prior conviction that was introduced at trial was dated December 18, 1992).
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Possession of Weapons on School Grounds
In a carrying a weapon on educational property case, the court rejected the defendant’s argument that there was a fatal variance between the indictment, which alleged that the defendant possessed weapons at “High Point University, located at 833 Montlieu Avenue” and the evidence, which showed that the conduct occurred at “1911 North Centennial Street.” The court concluded: “The indictment charged all of the essential elements of the crime: that Defendant knowingly possessed a Ruger pistol on educational property—High Point University. We agree with the State that the physical address for High Point University listed in the indictment is surplusage because the indictment already described the ‘educational property’ element as ‘High Point University.’”
A juvenile petition sufficiently alleged that the juvenile was delinquent for possession of a weapon on school grounds in violation of G.S. 14-269.2(d). The petition alleged that the juvenile possessed an “other weapon,” specified as a “steel link from chain.” The evidence showed that the juvenile possessed a 3/8-inch thick steel bar forming a C-shaped “link” about 3 inches long and 1½ inches wide. The link closed with a ½-inch thick bolt and the object weighed at least 1 pound. The juvenile could slide his fingers through the link so that 3-4 inches of the bar could be held securely across his knuckles and used as a weapon. Finding the petition sufficient the court stated: “the item . . . is sufficiently equivalent to what the General Assembly intended to be recognized as ‘metallic knuckles’ under [the statute].”
The court per curiam affirmed the decision below, State v. Stith, ___ N.C. App. ___, 787 S.E.2d 40 (April 5, 2016). In that decision, the court of appeals held, over a dissent, that an indictment charging the defendant with possessing hydrocodone, a Schedule II controlled substance, was sufficient to allow the jury to convict the defendant of possessing hydrocodone under Schedule III, based on its determination that the hydrocodone pills were under a certain weight and combined with acetaminophen within a certain ratio to bring them within Schedule III. The original indictment alleged that the defendant possessed “acetaminophen and hydrocodone bitartrate,” a substance included in Schedule II. Hydrocodone is listed in Schedule II. However, by the start of the trial, the State realized that its evidence would show that the hydrocodone possessed was combined with a non-narcotic such that the hydrocodone is considered to be a Schedule III substance. Accordingly, the trial court allowed the State to amend the indictment, striking through the phrase “Schedule II.” At trial the evidence showed that the defendant possessed pills containing hydrocodone bitartrate combined with acetaminophen, but that the pills were of such weight and combination to bring the hydrocodone within Schedule III. The court concluded that the jury did not convict the defendant of possessing an entirely different controlled substance than what was charged in the original indictment, stating: “the original indictment identified the controlled substance … as hydrocodone, and the jury ultimately convicted Defendant of possessing hydrocodone.” It also held that the trial court did not commit reversible error when it allowed the State to amend the indictment. The court distinguished prior cases, noting that here the indictment was not changed “such that the identity of the controlled substance was changed. Rather, it was changed to reflect that the controlled substance was below a certain weight and mixed with a non-narcotic (the identity of which was also contained in the indictment) to lower the punishment from a Class H to a Class I felony.” Moreover, the court concluded, the indictment adequately apprised the defendant of the controlled substance at issue. The court of appeals applied the same holding with respect to an indictment charging the defendant with trafficking in an opium derivative, for selling the hydrocodone pills.
In this Henderson County case, defendant appealed his conviction for trafficking opium or heroin by possession, arguing error in the denial of his requested instruction that the jury must find he knew what he possessed was fentanyl. The Court of Appeals found no error.
In March of 2018 the Henderson County Sheriff’s Office executed a warrant for defendant’s arrest at a home in Fletcher. During the arrest, an officer smelled marijuana and heard a toilet running in the house, leading the police to obtain a search warrant for the entire home. During this search, officers found a plastic bag with white powder inside, as well as some white powder caked around the rim of a toilet. Officers performed a field test on the substance which came back positive for cocaine, but when lab tested, the substance turned out to be fentanyl. At trial, one of the officers testified that “everyone” at the scene believed the substance they found was cocaine on the day of the search. Defendant chose not to testify during the trial, and had previously refused to give a statement when arrested.
Turning to defendant’s arguments, the court found that no evidence in the record supported defendant’s contention that he lacked guilty knowledge the substance was fentanyl. Defendant pointed to the officer’s testimony that “everyone” believed the substance was cocaine, but “[r]ead in context, it is apparent that [the officer] was referring to the knowledge of the officers who initially arrested [defendant and another suspect] for possession of cocaine, as the excerpted testimony immediately follows a lengthy discussion of their rationale for doing so.” Slip Op. at 8. Because defendant did not testify and no other evidence supported his contention that he lacked knowledge, his circumstances differed from other cases where a defendant was entitled to a guilty knowledge instruction. The court explained that evidence of a crime lacking specific intent, like trafficking by possession, creates a presumption that defendant has the required guilty knowledge; unless other evidence in the record calls this presumption into question, a jury does not have to be instructed regarding guilty knowledge. Id. at 9.
The defendant was convicted at trial of trafficking heroin, possession with intent to sell or deliver synthetic cannabinoids, and other various drug offenses in in Brunswick County. (1) During its instructions to the jury, the trial court stated that the jury should determine the guilt or innocence of this defendant and should not be influenced by evidence that other people were also charged in connection with the underlying events (who would get their own days in court). The defendant argued that this was an impermissible expression of judicial opinion on the evidence. Specifically, she argued that this instruction conveyed to the jury that the crime had occurred; that the jury should disregard all evidence that others present in the car may have been responsible; and that the defendant’s defense should be discounted. The Court of Appeals disagreed. First, the trial court expressed no opinion that the crime occurred. There was no argument denying the presence of drugs in the car, and the role of the jury in the case was to determine whether the defendant possessed them. The trial court’s acknowledgement that a crime had occurred was therefore not improper opinion. The instruction also did not command the jury to disregard evidence that others present may have been responsible. “Read in context, the trial court’s statement did not touch on Defendant’s evidence . . . [and] did not refer to the credibility of any evidence.” Hills Slip op. at 9. Finally, the instruction did not denigrate the defendant’s defense. Unlike other cases where a trial court’s statement was found to be improper, the instruction here did not disclaim the involvement of other people. Instead, the instruction specifically informed the jury that others who were charged in the case would have their own days in court. “The trial court’s instruction, therefore, did not reflect an opinion on the credibility of Defendant’s evidence but, instead, reminded the jury it must only consider the evidence presented during the course of the hearing.” Id. at 11. Further, the instruction at issue came after the close of evidence, not during evidence, lessening the risk that the jury would have taken it as an expression of opinion. Finally, the jury was instructed not to assume any opinion based on the trial court’s statements or expressions during trial immediately before receiving the contested instruction. Under the circumstances, the trial court’s instruction did not amount to an improper expression of opinion on the case.
(2) G.S. 90-89(7) lists 18 specific synthetic cannabinoids, but the substance charged in the indictment here—”methyl(2S)-2-{{1-(5-fluoropentyl)-1H-indazol-3-yl]formamido}-3,3-dimethylbutanoate (5F-ADB)”—is not listed there or elsewhere within Chapter 90 as a Schedule I substance. Wikipedia provides that the substance named in the indictment is a synthetic cannabinoid, and the State argued on appeal that this was sufficient to establish that the identity of the substance as a Schedule I drug. The court rejected this argument, pointing out that “[a] court may not look to extrinsic evidence to supplement a missing or deficient allegation in an indictment.” Hills Slip op. at 16. It found that the indictment failed to allege a necessary element of the offense (the controlled substance) and was therefore fatally flawed. The conviction was consequently vacated. Judges Dietz and Zachary concurred.
In this Pasquotank County case, the defendant was convicted of trafficking Fentanyl by possession and possession of Fentanyl with intent to sell or deliver, among other drug crimes. (1) The defendant argued on appeal that the indictment for these offenses was fatally defective because Fentanyl was not covered by the version of G.S. 90-95(h)(4) that was in effect at the time of her offense on December 31, 2006. The Court of Appeals determined that Fentanyl was an “opiate” within the meaning of the statute, which made it unlawful to possess or transport certain quantities of “opium or opiates.” The Court reasoned that though the term “opiate” typically refers to natural drugs derived from opium, like heroin, morphine and codeine, rather than synthetic drugs like Fentanyl, that definition was not universal. It agreed with the State that the General Assembly intended for the term “opiate” to include any drug that produces an opium-like effect by binding to opium receptors in the brain, regardless of whether the drug is naturally derived from opium or is synthetic or semi-synthetic. The Court noted that the common dictionary definition of the term opiate supported this broader reading as did the statutory definition of opiate. The Court rejected the defendant’s contention that the legislature’s 2018 amendment of the statute to replace the terms “opium or opiate” with “opium, opiate, or opioid” indicated that the term opiate did not include opioids, which are partially or wholly synthetic drugs produced in a lab to mimic the effects of opium. The Court held that the amendment was intended to clarify that opium, opiates, and opioids were all prohibited substances rather than to alter the applicability of the statute.
(2) The defendant also argued on appeal that the trial court’s instructions to the jury, which reported that it was deadlocked on the second day of deliberations, were improper as they did not recite the language from G.S. 15A-1235(b) (the statute that describes how a judge should instruct a deadlocked jury). The defendant did not object to the instruction at trial, so the Court of Appeals reviewed the issue for plain error. The Court compared the instructions given by the trial court to the statutory instruction, and determined that the instructions provided contained “all of the key elements and ideas from § 15A-1235(b).” Slip op. at § 39. Thus, the Court determined that jurors was properly instructed about their duty to deliberate and the defendant did not demonstrate plain error.
The trial court erred by allowing the State, at the beginning of trial, to amend the indictment charging the defendant with trafficking in heroin to allege trafficking in opiates. In connection with a drug investigation, an officer and informant waited in a hotel room for the defendant. The defendant arrived in a vehicle and, carrying a child in his arms, approached the room. Events ensued and the defendant admitted having placed a packet of heroin in the child’s pants. The defendant was arrested and the car was searched. A search of the car produced: two digital scales; a partially smoked marijuana “blunt;” $800 in cash; a key box under the hood containing balloons of heroin, a pill bottle containing marijuana, crack cocaine and 17 hydrocodone pills; and a revolver wrapped in a sock. The hydrocodone weighed 4.62 grams; the heroin recovered from the child’s pants weighed .84 grams; and the heroin found in the car weighed 3.77 grams. The minimum amount for trafficking in heroin is 4 grams; thus, the only way for the State to prove that minimum was to prove that the defendant possessed both the heroin found in the car and the smaller quality of heroin found in the child’s pants. At a pretrial hearing, the State dismissed several charges leaving the following charges in place: possession of a firearm by a felon, possession of marijuana, possession with intent to sell or deliver cocaine, trafficking in heroin by transportation, and trafficking in heroin by possession. At this point, defense counsel informed the court that the defendant would admit to the heroin found in the child’s pants. The prosecutor then asked to amend the trafficking indictments from trafficking in heroin to trafficking in opiates. The trial court granted the State’s motion to amend, over the defendant’s objection. The defendant was convicted on the trafficking charges. The court noted that here, the amendment broadened the scope of the original indictment to allege trafficking in “opiates,” a category of controlled substances, rather than “heroin,” a specific controlled substance. It did so, the court reasoned, for the purpose of bringing an additional controlled substance—hydrocodone—within the ambit of the indictment. Although heroin is an opiate, not all opiates are heroin. Therefore, when the original indictment was amended to include hydrocodone, a new substance was effectively alleged in the indictment. The court found its holding consistent with the proposition that a critical purpose of the indictment is to enable the accused to prepare for trial. Here, the State moved to amend on the morning of trial. Until then, the defendant had justifiably relied on the original indictment in preparing his defense. In fact this concern was expressed by defense counsel in his objection to the motion to amend, specifically arguing that the defendant had no knowledge that the hydrocodone would be included in the trafficking amount. Additionally, the State sought to amend the indictment only after the defendant informed the trial court of his intention to admit possessing some, but not all, of the heroin. The logical inference of the sequence is that upon learning of the defendant’s trial strategy on the morning of trial, the State sought to thwart that strategy by broadening the scope of the indictment. The court stated: “In essence, the State was permitted to change the rules of the game just as the players were taking the field.”
(1) Count 1 of an indictment charging the defendant with possessing a Schedule I controlled substance, “Methylethcathinone,” with intent to manufacture, sell or deliver was fatally defective. Although 4-methylethcathinone falls within the Schedule I catch-all provision in G.S. 90-89(5)(j), “Methylethcathinone” does not. Therefore, even though 4-methylethcathinone is not specifically named in Schedule I, the trial court erred by allowing the State to amend the indictment to allege “4-Methylethcathinone” and the original indictment was fatally defective. (2) Noting that the indictment defect was a jurisdictional issue, the court rejected the State’s argument that the defendant waived the previous issue by failing to object to the amendment. (3) Count two of the indictment charging the defendant with possessing a Schedule I controlled substance, “Methylone,” with intent to manufacture, sell or deliver was not fatally defective. The court rejected the defendant’s argument that the indictment was required to allege that methylone, while not expressly mentioned by name in G.S. 90-89, falls within the “catch-all” provision subsection (5)(j).
Indictments charging the defendant with drug crimes were fatally defective where they did not name controlled substances listed in Schedule III. The possession with intent and sale and delivery indictments alleged the substances at issue to be “UNI-OXIDROL,” "UNIOXIDROL 50” and “SUSTANON” and alleged that those substances were “included in Schedule III of the North Carolina Controlled Substances Act.” Neither Uni-Oxidrol, Oxidrol 50, nor Sustanon are included in Schedule III and none of these names are trade names for substances so included.
Indictments charging the defendant with drug crimes and identifying the controlled substance as “BENZODIAZEPINES, which is included in Schedule IV of the North Carolina Controlled Substances Act[.]” were defective. Benzodiazepines is not listed in Schedule IV. Additionally, benzodiazepine describes a category of drugs, some of which are listed in Schedule IV and some of which are not.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Amount of Drugs
In this Wake County case, a drug investigator was working at a local FedEx facility and noticed a package from California with the seams taped shut and with an apparently fake phone number for the recipient. The officer removed the package from the conveyor belt and searched law enforcement databases for information on the sender and the recipient. He discovered that the telephone number for the sender listed on the package was incorrect, that the telephone number for the recipient was fictitious, and that the package had been mailed from a location other than the listed shipping address. The package was placed alongside several other similar packages and was examined by a drug dog already present in the facility. Following an alert by the canine, officer obtained a search warrant for the package. Inside, officers discovered packages of around 15 pounds of suspected marijuana, along with a GPS tracker. Officers visited the address of the recipient, where they noticed the defendant in the driveway. They also noted the presence of a storage unit facility nearby and later learned the defendant rented a unit there. A man (apparently the sender) called the FedEx facility to inquire about the status of the package. An officer called him back, first verifying the intended address and recipient of the package and then identifying himself as law enforcement. The man on the phone cursed and ended the call. The next day, officers visited the storage facility near the defendant’s home with a canine unit, which alerted to a certain unit. While officers were obtaining a search warrant for the unit, the defendant arrived on scene holding a bag. Officers saw what they believed to be marijuana extract or “wax” inside the bag and placed the defendant under arrest. Once the search warrant for the storage unit was approved, officers discovered more apparent marijuana and marijuana extract inside. Search warrants for the defendant’s house were then obtained, leading to the discovery of marijuana paraphernalia and a substance used to produce marijuana extract.
The defendant was charged with conspiracy to traffic marijuana, possession with intent to sell/deliver marijuana and possession with intent to sell/deliver THC (among other related offenses). The defendant moved to suppress, arguing that the seizure of the package at the FedEx facility was unconstitutional. The trial court denied the motion, and the defendant was convicted of trafficking and other offenses at trial. On appeal, the defendant challenged the denial of his suppression motion, the denial of his motion to dismiss for insufficient evidence, the admission of lay opinions identifying the substances in the case as marijuana, marijuana wax, and THC, and the admission of the phone call between the officer and the man who called the FedEx facility inquiring about the package. The Court of Appeals affirmed.
(1) The court rejected the argument that the defendant’s Fourth Amendment rights were violated by the seizure of the package and canine sniff at the FedEx facility. “[W]e do not accept Defendant’s initial contention that the mere removal of the target package from the conveyor belt for a drug dog sniff was a ‘seizure’ implicating his Fourth Amendment rights. Neither was the drug dog sniff a ‘search. . .’” Teague Slip op. at 13. While both the sender and recipient of a mailed package have a reasonable expectation of privacy in the contents of a package, the temporary detention and investigation of the package in a manner that does not significantly delay its delivery does not amount to a Fourth Amendment seizure. Officers here had reasonable suspicion to justify a brief investigation and dog sniff of the package. From there, officers properly obtained search warrants of the package, which led to additional search warrants supported by probable cause. Thus, the acts of removing the package for investigation and subjecting it to a canine sniff did not implicate the defendant’s Fourth Amendment rights and the motion to suppress was properly denied.
(2) Assuming arguendo that the seizure and canine sniff of the package did implicate the defendant’s Fourth Amendment rights, he failed to preserve those arguments for appellate review. While the defendant filed a pretrial motion to suppress and fully litigated those issues (including objecting to the canine alert evidence at trial), he failed to object to testimony at trial about the removal of the package from the conveyor belt for additional investigation. Appellate review of that issue was therefore waived. The dog sniff on its own did not amount to a search, given it took place at the FedEx facility while the item was “still in the mail stream” and was completed within ten minutes. “…Defendant’s renewed objection at trial to the introduction of . . . the dog sniff was insufficient to resurrect any prior unpreserved Fourth Amendment argument for appellate review.” Id. at 25. The trial court also did not plainly err by denying the suppression. Because the defendant’s Fourth Amendment rights were not implicated, no error occurred, much less any plain error in the trial court’s denial of the suppression motion.
Regarding the defendant’s other challenges, the court noted the continued ambiguity surrounding the impact of hemp legalization on marijuana prosecutions, citing State v. Parker, 277 N.C. App. 531 (2021). The court opined that the now-defunct Industrial Hemp Act did not impact the State’s burden of proof in criminal proceedings “to the degree the Defendant contends,” while also acknowledging that “our appellate courts have yet to fully address the effect of industrial hemp’s legalization on . . . the various stages of a criminal investigation and prosecution for acts involving marijuana.” Teague Slip op. at 28 (citation omitted).
(3) The defendant argued that the indictment charging him with possession with intent to sell/deliver THC was fatally defective for failure to state a crime because the indictment failed to specify that the THC possessed by the defendant contained a delta-9 THC concentration of more than 0.3%. The court rejected this argument, finding that the concentration of delta-9 THC is not an element of the crime and that the then-applicable Industrial Hemp Act did not remove THC from the list of prohibited controlled substances under Chapter 90 of the North Carolina General Statues. Moreover, the defendant has the burden under G.S. 90-113.1 to prove lawful possession of a controlled substance, which is an exception to the prohibitions on controlled substances and (again) not an element of the offense. (The prohibition on possession of THC in G.S. 90-94 has since been amended to exclude all THC products containing no more than 0.3% delta-9 THC, which expressly removes delta-9 THC within the legal limit and all other hemp-derived THCs not exceeding the delta-9 THC limit from the list of prohibited controlled substances).
(4) The trial correctly denied the defendant’s motion to dismiss the charge of possession with intent to sell/deliver THC for insufficient evidence. The defendant pointed to the lack of any chemical analysis for the brown marijuana “wax” and argued that the State failed to present proof that the substance was an illegal controlled substance given the existence of legal hemp. The court found that the brown material did not qualify as industrial hemp under the then-existing definition but met the definition of THC in place at the time. “The brown material was neither a part nor a variety of the plant Cannabis sativa.” Teague Slip op. at 34 (emphasis in original). Moreover, even if the material did qualify as a part of the plant, “Defendant makes no argument that he was a ‘grower licensed by the Commission’, or that the brown material was cultivated by such a licensed grower, as the statutory definition of ‘industrial hemp’ requires.” Id. at 35. In the light most favorable to the State, there was therefore sufficient evidence that the brown material was THC, and the motion was properly denied. (Industrial hemp is no longer defined under state law and has been replaced by new state definitions for marijuana, hemp and hemp products, as discussed here. Under the new definitions, hemp is defined to include all extracts and derivatives of hemp, and hemp products are defined as anything made from hemp. There is no longer any requirement that hemp be grown by a licensed grower.)
(5) The defendant argued that the legalization of hemp in the state undercut the justifications in the decisions allowing the lay identification of marijuana without the need for a chemical analysis. See, e.g., State v. Mitchell, 224 N.C. App. 171, 179 (2013). He complained on appeal that the admission of lay opinion testimony identifying “marijuana wax,” “THC,” and marijuana as such without a valid chemical analysis violated N.C. Evid R. 702 and was reversible error. The Court of Appeals disagreed. Assuming without deciding that the trial court erred in admitting this testimony, the defendant could not show prejudice. The flower marijuana in the package was properly lab-tested and found to contain illegal levels of delta-9 THC. While the brown wax material was tested only for the presence of delta-9 THC and not for specific levels of THC, the material again did not qualify as industrial hemp under the then-existing definition. While other flower material found in the storage shed was likewise only tested for the presence of THC (and not for quantified THC levels), there was overwhelming evidence of the defendant’s guilt. Given the marijuana that was properly tested, along with the discovery of other drugs and drug paraphernalia at the defendant’s house, storage unit, and in the bag that the defendant was carrying when he encountered officers at the storage unit (among other evidence), there was no reasonable likelihood of a different result at trial had this identification testimony been excluded.
(6) There was also sufficient evidence supporting the defendant’s conviction for conspiring to traffic marijuana by transportation, and the trial court did not err in admitting a recording of the phone call between the apparent sender of the package and the law enforcement officer. The shipping label accurately named the defendant and his address, and the sender acknowledged that information on the call with the officer. The sender was also upset upon learning that the package had been intercepted by law enforcement. Additionally, the drugs in the package were worth more than $150,00.00 and included a GPS tracking device. This was sufficient to show the defendant and co-conspirator’s “mutual concern for and interest in” the package, thus providing sufficient evidence of the conspiracy. Id. at 44. The phone call between the sender of the package and law enforcement was properly admitted under the hearsay exception for statements of co-conspirators under N.C. Evid. R. 801(d)(E). The court rejected the defendant’s argument that the statement at issue here did not qualify under that exception because it was not a statement made between the conspirators. The court observed:
[W]hen the State has introduced prima facie evidence of a conspiracy, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members regardless of their presence or absence at the time the acts and declarations were done or uttered. Teague Slip op. at 46 (citation omitted) (emphasis in original).
There was therefore sufficient evidence of the conspiracy conviction and no error in admission of the phone call between law enforcement and the co-conspirator.
In a felony possession of cocaine case, the defendant waived the issue of fatal variance by failing to raise it at trial. The court however went on summarily reject the defendant’s argument on them merits. The defendant had argued that there was a fatal variance between the indictment, which alleged possession of .1 grams of cocaine and the evidence, which showed possession of 0.03 grams of cocaine.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Drug Activity Near School, Child Care, Park
As conceded by the State, indictments charging the defendant with possession with intent to sell and deliver marijuana and heroin within 1000 feet of a park under G.S. 90-95(e)(10) were fatally defective where they failed to allege that he was over the age of 21 at the time of the offenses.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Sale and Delivery of Controlled Substance
The court, per curiam, affirmed the decision below in State v. Land, 223 N.C. App. 305 (2012), holding that a drug indictment was not fatally defective. Over a dissent, the court of appeals had held that when a defendant is charged with delivering marijuana and the amount involved is less than five grams, the indictment need not allege that the delivery was for no remuneration. Relying on G.S. 90-95(b)(2) (transfer of less than five grams of marijuana for no remuneration does not constitute a delivery in violation of G.S. 90-95(a)(1)), the defendant argued that the statute “creates an additional element for the offense of delivering less than five grams of marijuana -- that the defendant receive remuneration -- and that this additional element must be alleged.” Relying on State v. Pevia, 56 N.C. App. 384, 387 (1982), the court of appeals held that an indictment is valid under G.S. 90-95 even without that allegation.
In this Cabarrus County case, defendant appealed his death by distribution conviction, arguing error in (1) denial of his motion to dismiss, and (2) improperly admitting Rule of Evidence 404(b) evidence. The Court of Appeals found no error.
In March of 2020, defendant sold drugs, purportedly heroin and cocaine, to two women. After taking the drugs, one of the women died, and toxicology determined she had both cocaine and fentanyl in her bloodstream. The level of metabolites for both cocaine and fentanyl were determined to be in the fatal range. When defendant came to trial on charges of death by distribution, the trial court allowed the surviving woman to testify about defendant’s prior sales of drugs to her as Rule 404(b) evidence to show defendant’s “intent, identity, and common scheme or plan.” Slip Op. at 5.
Considering (1) defendant’s motion to dismiss, the Court of Appeals addressed defendant’s arguments in relation to the elements of G.S. 14-18.4(b), the death by distribution statute. The court explained that circumstantial evidence supported the conclusion that defendant sold fentanyl instead of heroin to the victim. The court also noted “[w]hile the evidence does not foreclose the possibility that fentanyl may not have been the sole cause of [the victim’s] death, there is ample evidence to support a conclusion that it was, in fact, fentanyl that killed [the victim].” Id. at 9. Rejecting defendant’s argument that he could not foresee that the victim would consume all the drugs at once, the court found sufficient evidence to submit the question of proximate cause to the jury.
Moving to (2) the Rule 404(b) evidence, the court noted that the trial court engaged in a lengthy analysis of whether to admit the testimony related to previous drug sales. Here, the testimony “demonstrate[d] not only the common plan or scheme of Defendant’s drug sales, but also his intent when transacting with [the woman],” and also served to confirm his identity. Id. at 13. Because the court could not establish a danger of unfair prejudice outweighing the probative value of the testimony, it found no error.
The court rejected the defendant’s argument that there was a fatal variance between a sale and delivery indictment which alleged that the defendant sold the controlled substance to “A. Simpson” and the evidence. Although Mr. Simpson testified at trial that his name was “Cedrick Simpson,” not “A. Simpson,” the court rejected the defendant’s argument, stating:
[N]either during trial nor on appeal did defendant argue that he was confused as to Mr. Simpson’s identity or prejudiced by the fact that the indictment identified “A. Simpson” as the purchaser instead of “Cedric Simpson” or “C. Simpson.” In fact, defendant testified that he had seen Cedric Simpson daily for fifteen years at the gym. The evidence suggests that defendant had no question as to Mr. Simpson’s identity. The mere fact that the indictment named “A. Simpson” as the purchaser of the controlled substances is insufficient to require that defendant’s convictions be vacated when there is no evidence of prejudice, fraud, or misrepresentation.
No fatal variance where an indictment charging sale and delivery of a controlled substance alleged that the sale was made to “Detective Dunabro.” The evidence at trial showed that the detective had since gotten married and was known by the name Amy Gaulden. Because Detective Dunabro and Amy Gaulden were the same person, known by both married and maiden name, the indictment sufficiently identified the purchaser. The court noted that “[w]here different names are alleged to relate to the same person, the question is one of identity and is exclusively for the jury to decide.”
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Manufacture a Controlled Substance
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 816 S.E.2d 207 (2018), the court held that a manufacturing marijuana indictment was not fatally defective. The indictment alleged that the defendant “did manufacture [marijuana] . . . by producing, preparing, propagating and processing a controlled substance.” The defendant was found guilty of attempting to manufacture marijuana and other charges, and he appealed. The offense of manufacturing a controlled substance does not require an intent to distribute unless the activity constituting manufacture is preparation or compounding. Here, the indictment alleged that the defendant manufactured marijuana in four different ways, only one of which required a showing of an intent to distribute. After acknowledging that certain ways in which the defendant allegedly manufactured did not require proof that he acted with an intent to distribute, the Court of Appeals concluded that it was necessary that all four of those bases were alleged with sufficiency to confer jurisdiction on the trial court. The Supreme Court found that conclusion to be inconsistent with prior case law establishing that the use of the conjunctive in an indictment does not require the State to prove the various alternative matters alleged. Assuming without deciding that a valid indictment charging manufacturing by preparing or compounding must allege that the defendant acted with an intent to distribute, the indictment gave the trial court jurisdiction to enter judgment for manufacturing given that it also alleged that he did so by producing, propagating, and processing.
For the reasons stated in the dissenting opinion below, the court reversed State v. Hinson, 203 N.C. App. 172 (Apr. 6, 2010). The defendant was indicted for manufacturing methamphetamine by “chemically combining and synthesizing precursor chemicals to create methamphetamine.” However, the trial judge instructed the jury that it could find the defendant guilty if it found that he produced, prepared, propagated, compounded, converted or processed methamphetamine, either by extraction from substances of natural origin or by chemical synthesis. The court of appeals held, over a dissent, that this was plain error as it allowed the jury to convict on theories not charged in the indictment. The dissenting judge concluded that while the trial court’s instructions used slightly different words than the indictment, the import of both the indictment and the charge were the same. The dissent reasoned that the manufacture of methamphetamine is accomplished by the chemical combination of precursor elements to create methamphetamine and that the charge to the jury, construed contextually as a whole, was correct.
An indictment charging manufacturing of methamphetamine was sufficient. The indictment alleged that the defendant “did knowingly manufacture methamphetamine.” It went on to state that the manufacturing consisted of possessing certain precursor items. The latter language was surplusage; an indictment need not allege how the manufacturing occurred.
An indictment charging trafficking by manufacturing was not defective. The court rejected the defendant’s argument that the indictment was fatally defective because it did not adequately describe the manner in which the defendant allegedly manufactured cocaine. It reasoned: “Although Defendant is correct in noting that the indictment does not explicitly delineate the manner in which he manufactured cocaine or a cocaine-related mixture, the relevant statutory language creates a single offense consisting of the manufacturing of a controlled substance rather than multiple offenses depending on the exact manufacturing activity in which Defendant allegedly engaged.”
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Maintaining a Dwelling
Theories included in the trial judge’s jury instructions were supported by the indictment. The indictment charged the defendant with maintaining a dwelling “for keeping and selling a controlled substance.” The trial court instructed the jury on maintaining a dwelling “for keeping or selling marijuana.” The use of the conjunctive “and” in the indictment did not require the State to prove both theories alleged.
The trial court erred by allowing the State, at the beginning of trial, to amend the indictment charging the defendant with trafficking in heroin to allege trafficking in opiates. In connection with a drug investigation, an officer and informant waited in a hotel room for the defendant. The defendant arrived in a vehicle and, carrying a child in his arms, approached the room. Events ensued and the defendant admitted having placed a packet of heroin in the child’s pants. The defendant was arrested and the car was searched. A search of the car produced: two digital scales; a partially smoked marijuana “blunt;” $800 in cash; a key box under the hood containing balloons of heroin, a pill bottle containing marijuana, crack cocaine and 17 hydrocodone pills; and a revolver wrapped in a sock. The hydrocodone weighed 4.62 grams; the heroin recovered from the child’s pants weighed .84 grams; and the heroin found in the car weighed 3.77 grams. The minimum amount for trafficking in heroin is 4 grams; thus, the only way for the State to prove that minimum was to prove that the defendant possessed both the heroin found in the car and the smaller quality of heroin found in the child’s pants. At a pretrial hearing, the State dismissed several charges leaving the following charges in place: possession of a firearm by a felon, possession of marijuana, possession with intent to sell or deliver cocaine, trafficking in heroin by transportation, and trafficking in heroin by possession. At this point, defense counsel informed the court that the defendant would admit to the heroin found in the child’s pants. The prosecutor then asked to amend the trafficking indictments from trafficking in heroin to trafficking in opiates. The trial court granted the State’s motion to amend, over the defendant’s objection. The defendant was convicted on the trafficking charges. The court noted that here, the amendment broadened the scope of the original indictment to allege trafficking in “opiates,” a category of controlled substances, rather than “heroin,” a specific controlled substance. It did so, the court reasoned, for the purpose of bringing an additional controlled substance—hydrocodone—within the ambit of the indictment. Although heroin is an opiate, not all opiates are heroin. Therefore, when the original indictment was amended to include hydrocodone, a new substance was effectively alleged in the indictment. The court found its holding consistent with the proposition that a critical purpose of the indictment is to enable the accused to prepare for trial. Here, the State moved to amend on the morning of trial. Until then, the defendant had justifiably relied on the original indictment in preparing his defense. In fact this concern was expressed by defense counsel in his objection to the motion to amend, specifically arguing that the defendant had no knowledge that the hydrocodone would be included in the trafficking amount. Additionally, the State sought to amend the indictment only after the defendant informed the trial court of his intention to admit possessing some, but not all, of the heroin. The logical inference of the sequence is that upon learning of the defendant’s trial strategy on the morning of trial, the State sought to thwart that strategy by broadening the scope of the indictment. The court stated: “In essence, the State was permitted to change the rules of the game just as the players were taking the field.”
In a trafficking case, there was no fatal variance between the indictment, alleging that the defendant trafficked in opium, and the evidence at trial, showing that the substance was an opium derivative. G.S. 90-95(h)(4) “does not create a separate crime of possession or transportation of an opium derivative, but rather specifies that possession or transportation of an opium derivative is trafficking in opium,” as alleged in the indictment.
(1) The State conceded and the court held that an indictment for trafficking in opium by sale was fatally defective because it failed to name the person to whom the defendant allegedly sold or delivered the controlled substance. The indictment stated that the sale was "to a confidential informant[.]" It was undisputed that the name of the confidential informant was known. (2) An indictment for trafficking by delivery was defective for the same reason.
The trial court committed reversible error by allowing the State to amend an indictment charging conspiracy to engage in “trafficking to deliver Cocaine” to add the following language: “to deliver 28 grams or more but less than 200 grams of cocaine.” To allege all of the essential elements, an indictment for conspiracy to traffic in cocaine must allege that the defendant facilitated the transfer of 28 grams or more of cocaine. Here, the indictment failed to specify the amount of cocaine. The court also concluded that a defendant cannot consent to an amendment that cures a fatal defect; the issue is jurisdictional and a party cannot consent to subject matter jurisdiction.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Precursor Chemical Offenses
An indictment charging the defendant with possession of methamphetamine precursors was fatally defective and the defect could not be cured by amendment. Specifically, the indictment failed to allege that the defendant possessed the precursors knowing or having reasonable cause to believe that they would be used to manufacture methamphetamine. The trial court allowed the State to amend the indictment to add this allegation at trial. The amendment was improper and the indictment was fatally defective.
Over a dissent, the court held that an indictment charging possession of methamphetamine precursors was defective because it failed to allege either the defendant’s intent to use the precursors to manufacture methamphetamine or his knowledge that they would be used to do so. The indictment alleged only that the defendant processed the precursors in question; as such it failed to allege the necessary specific intent or knowledge.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Motor Vehicle Offenses > Impaired Driving
In an impaired driving case, citation language alleging that the defendant acted “willfully” was surplusage.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Motor Vehicle Offenses > Felony Speeding to Elude
An indictment charging felonious speeding to elude arrest and alleging an aggravating factor of reckless driving was not required to specify the manner in which the defendant drove recklessly.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Motor Vehicle Offenses > Habitual Impaired Driving
The trial court did not err by allowing the State to amend a habitual impairing driving indictment that mistakenly alleged a seven-year look-back period (instead of the current ten-year look-back), where all of the prior convictions alleged in the indictment fell within the ten-year period. The language regarding the seven-year look-back was surplusage.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > G.S. 14-3 Misdemeanor Sentencing Enhancement
An obstruction of justice indictment properly charged a felony when it alleged that the act was done “with deceit and intent to interfere with justice.” G.S. 14-3(b) provides that a misdemeanor receives elevated punishment when done with “deceit and intent to defraud.” The language “deceit and intent to interfere with justice” adequately put the defendant on notice that the State intended to seek a felony conviction. Additionally, the indictment alleged that the defendant acted “feloniously.”
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 166 (2017), the court reversed, holding that a habitual felon indictment was not fatally defective. The statute requires that a habitual felon indictment set forth “the date that prior felony offenses were committed;” “the name of the state or other sovereign against whom said felony offenses were committed;” “the dates that pleas of guilty were entered to or convictions returned in said felony offenses;” and “the identity of the court wherein said pleas or convictions took place.” Here, the indictment alleged that the three prior felony offenses were committed on 11 September 2006, 8 October 2009, and 24 August 2011; that the offenses that led to defendant’s felony convictions were committed against the State of North Carolina; that defendant was convicted of committing these offenses, the identity of which was specified in the body of the habitual felon indictment, on 15 February 2007, 21 September 2010, and 5 May 2014; and that each of these convictions occurred in the Superior Court, Pitt County. As a result, the habitual felon indictment contains all of the information required by G.S. 14-7.3 and provides defendant with adequate notice of the bases for the State’s contention that defendant had attained habitual felon status. The court noted that the indictment alleged that the defendant had committed the offenses of armed robbery and had been convicted of the lesser included offenses of common-law robbery. Because an indictment for an offense includes all lesser offenses, when the defendant allegedly committed the offense of armed robbery 8 October 2009 and 24 August 2011, he also committed the lesser included offense of common law robbery. Thus, the Court of Appeals was incorrect to state that “[i]t would be an impermissible inference to read into the indictment that common law robbery took place on 8 October 2009 or 24 August 2011 because that is not what the grand jury found when it returned its bill of indictment.”
The defendant was charged with three counts of breaking and entering, three counts of larceny after breaking and entering, two counts of obtaining property by false pretenses, and one count of felonious possession of stolen goods. The State ostensibly indicted the defendant as an habitual felon, for which the defendant waived arraignment, but the grand jury had returned the indictment marked as “NOT A TRUE BILL.” At the close of the State’s evidence at the trial of the underlying felonies, the trial judge granted the defendant’s motion to dismiss the breaking and entering charges, the related larceny charges, and one of the false pretenses counts. The jury convicted the defendant of one false pretense count and of the lesser offense of misdemeanor possession of stolen goods. Those convictions rested on the defendant’s possession of five stolen videogames and the sale of those videogames to a pawn shop for $12. After the jury’s verdict, the trial judge granted the State’s request to continue sentencing to obtain a new habitual felon indictment. The defendant was thereafter tried on the new habitual felon indictment and sentenced to 115 to 150 months in prison.
The defendant argued at trial and on appeal that the trial court did not have jurisdiction to try and sentence the defendant as an habitual felon. A majority of the Court of Appeals rejected the defendant’s argument, relying on State v. Oakes, 113 N.C. App. 332 (1994). Quoting from a portion of the Oakes opinion, the majority stated that an habitual felon indictment must be part of a prosecution “for which no judgment” has yet been entered. Oakes, 113 N.C. App. at 340. Accordingly, because judgment had not yet been entered, the State could obtain and prosecute a new habitual felon indictment. The majority also held that the trial judge did not abuse her discretion in granting a continuance to allow the State to obtain a new habitual felon indictment, rejecting the defendant’s argument that the continuance was improper because it resulted in an exponential increase in his sentence. The dissenting judge distinguished the current case from Oakes. The dissent observed that Oakes found that the defect in the habitual felon indictment was “technical” and “[a]t the time defendant entered his plea to the underlying substantive felony and proceeded to trial, there was pending against him an habitual felon indictment presumed valid by virtue of its ‘return by the grand jury as a true bill.’” Id., 113 N.C. App. at 339. Here, there was not a true bill of indictment, and allowing the State to obtain a new habitual felon indictment after the defendant entered his plea to the underlying felony was, in the dissent’s view, “beyond the boundaries of due process.” [Note: For a further discussion of case law on when the State may obtain a superseding habitual felon indictment, see Jeff Welty, North Carolina’s Habitual Felon, Violent Habitual Felon, Habitual Breaking and Entering Laws, ADMINISTRATION OF JUSTICE BULLETIN No. 2013/07, at 14–16 (Aug. 2013) (discussing cases allowing superseding habitual felon indictment for technical defects after trial of underlying felony but not for substantive changes).]
A habitual felon indictment was fatally defective. Citing precedent, the court noted that a habitual felon indictment must state two dates for each prior felony conviction: the date that the defendant committed the felony and the date that the defendant was convicted of the felony. These dates are essential elements. Here, the indictment failed to allege an offense date for one of the defendant’s prior felony convictions.
The trial court erred by instructing the jury that it could find that the defendant attained habitual felon status based on a prior conviction for selling cocaine where the indictment did not allege that conviction. The indictment alleged three predicate felonies to establish habitual felon status. However, the trial court instructed the jury on four felonies, the three identified in the indictment as well as sale of cocaine, which was not alleged in the indictment. Because it was impossible for the court to determine whether the jurors relied on the fourth felony not alleged in the indictment, a new hearing on habitual felon was required.
The trial court lacked jurisdiction over a habitual felon charge where the habitual felon indictment was returned before the principal felonies occurred.
A habitual felon indictment was not defective where it described one of the prior felony convictions as “Possess Stolen Motor Vehicle” instead of Possession of Stolen Motor Vehicle. The defendant’s argument was “hypertechnical;” the indictment sufficiently notified the defendant of the elements of the offense. Moreover, it referenced the case number, date, and county of the prior conviction.
Although a habitual felon indictment may be returned before, after, or simultaneously with a substantive felony indictment, it is improper where it is issued before the substantive felony even occurred.
The defendant failed to properly preserve the argument that there was a fatal variance between a drug trafficking indictment and the evidence at trial, where the issue was raised for the first time on appeal. The defendant never alleged a fatal variance when he moved to dismiss the charge. Rather, his motion was based on insufficiency of the evidence.
A defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.
A defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.
By failing to object at trial to a fatal variance between a second-degree trespass indictment and the evidence at trial, the defendant failed to preserve the issue. The court declined to invoke Rule 2 to address the issue on the merits.
A fatal variance issue that is not raised at trial is waived for purposes of appeal.
By failing to assert a claim of fatal variance between the indictment and the evidence with respect to a charge of injury to personal property, the defendant failed to preserve the issue for appellate review. Nevertheless, the court considered the issue and rejected the defendant’s claim. The indictment alleged that the defendant injured the personal property of the church, specifically a lock on a door. The defendant asserted that the evidence showed that the damaged device was owned not by the church but rather by the lessor of the property. The court concluded however that the evidence was sufficient to allow the jury to find that the church owned the lock and that it was damaged.
In a trafficking in methamphetamine case where the defendant did not object on grounds of fatal variance at trial, the issue was waived for purposes of appeal.
The issue of fatal variance is not preserved for purposes of appeal if not asserted at trial.
Where a defendant failed to make a motion to dismiss on the basis of fatal variance at trial, the issue was waived for purposes of appeal.
Where a defendant failed to make a motion to dismiss on the basis of fatal variance at trial, the issue was waived for purposes of appeal.
(1) By failing to assert fatal variance as a basis for his motion to dismiss, the defendant failed to preserve the issue for appellate review.
In a felony possession of cocaine case, the defendant waived the issue of fatal variance by failing to raise it at trial.
On appeal, the defendant argued that there was a fatal variance between the indictment charging him with possession of a firearm and the evidence introduced at trial. Specifically, the defendant argued there was a variance as to the type of weapon possessed. By failing at the trial level to raise fatal variance or argue generally about insufficiency of the evidence as to the weapon used, the defendant waived this issue for purposes of appeal.
Because it is a jurisdictional issue, a defendant’s argument that a criminal indictment is defective may be raised for the first time on appeal notwithstanding the defendant’s failure to contest the validity of the indictment at trial.
A defendant may challenge the sufficiency of an indictment even after pleading guilty to the charge at issue.
The defendant pled guilty to controlled substance offenses pursuant to a bill of information and waiver of indictment. In an MAR, the defendant argued that the pleadings were defective and the trial court lacked jurisdiction because the waiver of indictment was not signed by his attorney. The trial court denied the MAR, finding that the pleadings substantially complied with the statute, but the appellate court reversed and remanded with instructions to grant the MAR and vacate the judgment. The requirements listed in G.S. 15A-642 for a waiver of indictment, including the signature of the defendant’s attorney, are mandatory. Therefore, the waiver in this case was “invalid without Defendant’s attorney’s signature, depriving the trial court of jurisdiction to accept Defendant’s guilty plea and enter judgment.”
The trial court erred by denying the defendant’s motion for appropriate relief alleging that the trial court lacked subject matter jurisdiction to enter judgment where the defendant was charged with a bill of information that did not include or attach a waiver of indictment. G.S. 15A-642 allows for the waiver of indictment in non-capital cases where a defendant is represented by counsel. The statute further requires: “Waiver of Indictment must be in writing and signed by the defendant and his attorney. The waiver must be attached to or executed upon the bill of information.” G.S. 15A-642(c). The court rejected the State’s argument that the statute’s requirements about waiver of indictment were not jurisdictional.
No double jeopardy violation occurs when the State retries a defendant on a charging instrument alleging the correct offense date after a first charge was dismissed due to a fatal variance.
Citing State v. Johnson, 9 N.C. App. 253 (1970), and noting in dicta that the granting of a motion to dismiss due to a material fatal variance between the indictment and the proof presented at trial does not preclude a retrial for the offense alleged on a proper indictment.
(COA10-1485). Because the defendant was never arraigned on a second indictment (that did not indicate that it was a superseding indictment), the second indictment did not supersede the first indictment.
The trial court’s failure to dismiss the original indictment after a superseding indictment was filed did not render the superseding indictment void or defective.
The defendant was charged by arrest warrant with misdemeanor injury to personal property, misdemeanor larceny, and reckless driving after he cut off the end of a truck stop’s air hose, attempted to strike his passenger with it, and then quickly fled with it when confronted by an undercover officer. He was convicted in district court and appealed to superior court. Before trial in superior court, the State moved to amend the charging language to correct the name of the corporate property owner for the injury to personal property and larceny charges. The prosecutor made the amendment on a misdemeanor statement of charges form with no objection from the defendant. The defendant was convicted and appealed. A divided Court of Appeals held that the superior court lacked jurisdiction to try the charges amended through the statement of charges, reasoning that under the language of G.S. 15A-922(e), a statement of charges may be filed after arraignment only if the defendant objects to the State’s original pleading. State v. Capps, ___ N.C. App. ___, 828 S.E.2d 733 (2019). The State appealed and the Supreme Court reversed, reinstating the convictions. The Court held that warrants may be amended at any time when doing so does not materially affect the nature of the charged offense or is otherwise authorized by law. And the State may make the amendment though a statement of charges, because the General Assembly intended statements of charges to be generally treated like amendments. The Court rejected the defendant’s argument that the defendant’s objection to the sufficiency of a warrant is a necessary prerequisite to a post-arraignment statement of charges.
The superior court lacked jurisdiction to try the defendant for resisting arrest where the defendant was tried on a misdemeanor statement of charges filed in superior court. The State filed the statement of charges on its own, without an objection to the magistrate’s order having been made by the defendant. Under G.S. 15A-922, “the State has a limited window in which it may file a statement of charges on its own accord, and that is prior to arraignment” in district court. After arraignment, the State may only file a statement of charges when the defendant objects to the sufficiency of the pleading and the trial court rules that the pleading is insufficient.
Although the State improperly circumvented district court jurisdiction by simultaneously obtaining a presentment and an indictment from a grand jury, the proper remedy is to remand the charges to district court, not dismissal. The defendant was issued citations for impaired driving and operating an overcrowded vehicle. After the defendant’s initial hearing in district court, she was indicted by the grand jury on both counts and her case was transferred to Superior Court. The grand jury was presented with both a presentment and an indictment, identical but for the titles of the respective documents. When the case was called for trial in Superior Court, the defendant moved to dismiss for lack of subject matter jurisdiction due to the constitutional and statutory invalidity of the presentment and indictment procedure. The Superior Court granted the defendant’s motion and the State appealed.
G.S. 15A-641 provides that “[a] presentment is a written accusation by a grand jury, made on its own motion . . . .” It further provides that “[a] presentment does not institute criminal proceedings against any person, but the district attorney is obligated to investigate the factual background of every presentment . . . and to submit bills of indictment to the grand jury dealing with the subject matter of any presentments when it is appropriate to do so.” The plain language of G.S. 15A-641 “precludes a grand jury from issuing a presentment and indictment on the same charges absent an investigation by the prosecutor following the presentment and prior to the indictment.” The court rejected the State’s argument that G.S. 15A-644 governs the procedure for presentments and that because the presentment met the requirements of that statute it is valid, concluding in part: “It is not the sufficiency of the presentment form and contents that is at issue, but the presentment’s simultaneous occurrence with the State’s indictment that makes both invalid.” Here, the prosecutor did not investigate the factual background of the presentment after it was returned and before the grand jury considered the indictment. Because the prosecutor submitted these documents to the grand jury simultaneously and they were returned by the grand jury simultaneously in violation of G.S. 15A-641 “each was rendered invalid as a matter of law.” The court thus affirmed the superior court’s ruling that it did not have subject matter jurisdiction over the case.
The court went on to affirm the lower court’s conclusion that the superior court prosecution violated the defendant’s rights under Article I, Section 22 of the state constitution, but found that it need not determine whether the defendant was prejudiced by this violation. It further held that the trial court erred in holding that the State violated the defendant’s rights under Article I, Sections 19 and 23 of the North Carolina Constitution.
On the issue of remedy, the court agreed with the State that the proper remedy is not dismissal but remand to District Court for proceedings on the initial misdemeanor citations.
The court rejected the defendant’s argument that the trial court lacked subject matter jurisdiction over a misdemeanor stalking charge. Although the defendant argued that there was no evidence in the record of a presentment, the amended record shows that a presentment was issued by the grand jury and filed with the superior court.
In this DWI case, the court rejected the defendant’s argument that the State deprived him of equal protection by initiating the proceeding using a presentment instead of a citation. A rational basis (judicial economy) supported use of a presentment.
A defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.
In this Cabarrus County case, defendant appealed his convictions for uttering a forged instrument and obtaining property by false pretenses, arguing that the indictment was fatally defective and the record of the hearing omitted conversations by the bench. The Court of Appeals found no error.
Reviewing defendant’s arguments on appeal, the court first explained that “[a] defendant must bring a motion to quash a fatally defective indictment to preserve the issue on appeal.” Slip Op. at 4. Because defendant did not move to quash the indictment, he forfeited this argument on appeal; defendant’s motion to dismiss at trial was a motion to dismiss for insufficiency of the evidence, and this motion did not reference the fatally defective indictment.
Regarding defendant’s recordation argument, the court pointed to State v. Blakeney, 352 N.C. 287 (2000), to draw the distinction between recording statements in open court and statements made during private bench conferences. Slip Op. at 6-7. Because applicable precedent held that G.S. § 15A-1241 does not require recording of private bench conferences, and defendant did not request the recording of these conferences, there was no error by the trial court.
Fatal variance issues not raised at trial are waived on appeal.
A defendant may not challenge the validity of an indictment in an appeal challenging revocation of probation. In such circumstances, challenging the validity of the original judgment is an impermissible collateral attack.
(1) On appeal from a divided panel of the Court of Appeals, ___ N.C. ___, 818 S.E.2d 324 (2018), the court, over a dissent, reversed the Court of Appeals’ conclusion that there was insufficient evidence to send a charge of disorderly conduct, based upon the juvenile’s act of throwing a chair in a school cafeteria, to the jury. The court first addressed the question of whether the juvenile delinquency petition sufficiently alleged a violation of G.S. 14-288.4. Finding that the State followed the “true and safe rule” by substantially employing the terminology of the statute in the petition, the court found it sufficient to confer subject matter jurisdiction to the district court. Though the petition did not specifically cite the subdivision of the statute that the juvenile was alleged to have violated, the court found that the petition’s allegation that the juvenile had thrown a chair toward another student “averred that the juvenile was delinquent for a violation of [G.S. 14-288.4(a)(1)].” Subsection (a)(1) describes a form of disorderly conduct that occurs when a person “engages in fighting or other violent conduct or in conduct creating the threat of imminent fighting or other violence.”
(2) Having found the petition sufficient, the court went on to conclude that evidence that the juvenile threw a chair at his brother across the cafeteria where other students were present, when viewed in the light most favorable to the State, was substantial evidence that the juvenile “engag[ed] in violent conduct” in violation of the statute.
A dissenting judge said that the evidence could “fairly be said to raise a suspicion that [the juvenile] engaged in violent conduct, but no more than a suspicion.” The dissenting judge would have held that the evidence was insufficient to send the charge to the jury.
In this Surry County juvenile case, a petition was filed alleging that the juvenile committed extortion by obtaining a digital image of a victim, without her knowledge or consent, in which she was in only her bra and underwear. The petition also alleged that the juvenile used the image to obtain food from the school cafeteria while threatening to expose the image if the victim refused to buy the food or do what the juvenile asked of her. The petition did not name the victim. The juvenile was adjudicated delinquent and the court entered a Level 1 disposition. On appeal the juvenile asserted that (1) the court lacked subject matter jurisdiction because the petition was fatally defective in that it failed to name the victim, (2) the juvenile’s motion to dismiss should have been granted because the crime of extortion requires threat of unlawful physical violence and the juvenile did not make such a threat, (3) there was a fatal variance between the threat alleged in the petition and the proof at the adjudication hearing, (4) the written findings in the adjudication order were insufficient, and (5) the disposition order was insufficient in its failure to contain findings of fact to demonstrate that the court considered all the required factors in G.S. 7B-2501(c).
(1) The Court of Appeals concluded that there was no fatal defect in the petition. Juvenile petitions are generally held to the same standards as criminal indictments in that they must aver every element of the offense with sufficient specificity to clearly apprises the juvenile of the conduct being charged. Like an indictment, a fatally deficient petition fails to evoke the jurisdiction of the court. Central to the offense of extortion is the wrongfulness of the method by which the juvenile seeks to obtain something of value. Slip op. at ¶ 23. A charging instrument charging extortion need only aver the material elements of the offense, which are 1) that a wrongful demand was made with 2) the intent to demand something of value. Slip op. at ¶ 24. The petition in this case sufficiently alleged each of these elements. It was not necessary to specifically name the victim.
(2) The Court also assumed, without holding, that G.S. 14-118.4 is an anti-threat statute, the court holds that First Amendment jurisprudence does not limit the application of this statute to threats of unlawful physical violence. Slip op. at ¶ 31. The definition of a true threat, as provided in State v. Taylor, 379 N.C. 589, 2021-NCSC-164, does not require that a threat includes unlawful physical violence. There is no constitutional rule that threats are protected speech unless they threaten unlawful physical violence. Slip op. at ¶ 34. The State was not required to prove that the juvenile threatened unlawful physical violence.
(3) Next, the Court concluded that there was no fatal variance between the petition and the evidence. The essential element of extortion is that the juvenile used a wrongful threat to obtain something of value. The precise identification of what that thing of value was is not material, as long as the State proves that the juvenile obtained or attempted to obtain something of value. Slip op. at ¶ 40. The specific language in the petition alleging that the juvenile sought to obtain food from the cafeteria was unnecessarily specific and therefore surplusage. The fact that the evidence showed that the juvenile asked the victim to do his homework and the petition alleged that he asked her to obtain food from the cafeteria did not create a fatal variance.
(4) Next, the Court concluded that there were insufficient written findings in the adjudication order. G.S. 7B-2411 requires that, at a minimum, the court state in a written adjudication order that the allegations in the petition have been proved beyond a reasonable doubt. Language on the pre-printed form used, stating that “The following facts have been proven beyond a reasonable doubt: . . ,” followed by a finding that states, “[a]t the hearing before the judge, the juvenile was found to be responsible for extortion in violation of 14-118.4,” is insufficient to satisfy this statutory requirement. Only a conclusory statement that the juvenile was responsible for the offense is insufficient. The trial court must affirmatively state the burden of proof in its written findings without regard to the pre-printed language on the form. The case is remanded for the court to make the necessary written findings in the adjudication order. The dispositional order also incorporated the predisposition report and the juvenile’s risk and needs assessment by reference. There were no written findings related to the factors the court is required to consider under G.S. 7B-2501(c) when ordering a disposition. The order is therefore insufficient. Because the adjudication order is vacated, this disposition order is also vacated. However, the insufficiency of the disposition order provides an independent ground for vacating the disposition order. On remand, the trial court may hold a new dispositional hearing to hear additional evidence needed to appropriately consider the factors required by G.S. 7B-2501(c).
In a case where a juvenile was found to be delinquent based on the offense of injury to personal property with respect to a school printer, the trial court did not err by denying the juvenile’s motion to dismiss. The petition alleged that the juvenile damaged a printer owned by the “Charlotte Mecklenburg Board of Education[.]” The juvenile argued that the trial court erred by denying the motion to dismiss because the petition failed to allege that the school was an entity capable of owning property and that the evidence at trial did not prove who owned the printer. The court held that because the juvenile conceded the fact that the school was an entity capable of owning property and the State presented evidence that the school owned the printer, the trial court did not err by denying the motion. The court noted that the juvenile’s counsel expressly acknowledged to the trial court that the Charlotte-Mecklenburg Board of Education is an entity capable of owning property. The court also noted that because the juvenile did not contest this issue at trial, it could not be raised for the first time on appeal. As to the evidence, the State presented a witness who testified to ownership of the printer. A concurring judge recognized that with respect to the petition’s failure to plead that the owner was an entity capable of owning property, had the pleading been an indictment, the issue could be raised for the first time on appeal. However, the concurring judge concluded that the owner’s capability of owning property does not need have been pleaded in a petition with the same specificity as in an indictment.
The defendant was charged and convicted of felonious breaking and entering, felonious larceny after breaking and entering, and attaining the status of habitual felon for breaking into a neighbor’s house on April 24, 2018 and stealing a coffee canister of cash.
(1) The defendant, who had been arrested two days after the crime, did not receive copies of the initial indictment or a superseding indictment until December 17, 2018 – the day his trial began. After receiving the indictment, the defendant said he was ready to proceed with trial. The defendant argued on appeal that the trial court’s failure to follow the timely notice requirements of G.S. 15A-630 undermined his ability to prepare for trial and to assert certain statutory rights. The Court of Appeals disagreed, reasoning that although the defendant was not timely served with the indictment, the delay was not jurisdictional, and the defendant did not show that he was prejudiced by the delay. The record established that the defendant was aware of the charges, had viewed the evidence against him, including home surveillance footage, and had ample opportunity to prepare an adequate defense.
(2) The defendant, who had waived counsel twice before in the case, requested standby counsel on the second day of trial. The trial court denied the request, noting that the jury was empaneled and there were no attorneys in the courtroom other than prosecutors. The defendant then changed into his orange jail jumpsuit and refused to participate in the trial. On appeal, the defendant argued that the trial court erred in denying his request. The Court of Appeals disagreed, determining that the trial court properly exercised its discretion to deny the request.