Smith's Criminal Case Compendium

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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E.g., 10/18/2021
E.g., 10/18/2021

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.”

State v. Avent, 222 N.C. App. 147 (Aug. 7, 2012)

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.

In Re A.W., 209 N.C. App. 596 (Feb. 15, 2011)

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.

State v. Hueto, 195 N.C. App. 67 (Jan. 20, 2009)

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.”

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.

State v. Brawley, 370 N.C. 626 (Apr. 6, 2018)

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.

State v. Ellis, 368 N.C. 342 (Sept. 25, 2015)

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.”

State v. Forte, ___ N.C. App. ___, 817 S.E.2d 764 (July 3, 2018) review granted, 371 N.C. 779 (Dec 5 2018)

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).

State v. Spivey, 240 N.C. App. 264 (Apr. 7, 2015) rev’d on other grounds, 368 N.C. 739 (Mar 18 2016)

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.

In Re M.S., 199 N.C. App. 260 (Aug. 18, 2009)

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.

State v. Carter, 370 N.C. 266 (Nov. 3, 2017)

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.

State v. Brice, 370 N.C. 244 (Nov. 3, 2017)

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.

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