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., 07/21/2024
E.g., 07/21/2024

In this Watauga County Case, defendant appealed his convictions for three counts of second-degree rape and one count of sex offense in a parental role, arguing four points of error. The Court of Appeals found no error. 

In 2020, a sergeant with the Watauga County Sheriff’s office discovered a 2004 report prepared by a social worker documenting allegations that defendant was abusing his step-children. The sergeant contacted the victim in this case and conducted an interview, where she recounted two instances of abuse, one involving oral sex after a science fair when the victim was in the seventh grade, and the second where sexually assaulted her in a car in the garage of their house, along with ongoing abuse for several months thereafter. The matter came for trial in 2023, and the victim testified about defendant’s abuse consistent with the interview. 

The Court of Appeals first took up defendant’s argument that the indictments were deficient and fatally defective, finding no merit to the argument. Defendant argued that the indictments did not specifically identify the days on which the alleged offenses occurred, and that the multiple charges of second-degree rape were identical and could not be distinguished by the jury. The court explained that a policy of leniency applies to child sex abuse cases, and noted that this was expressly incorporated into G.S. 15-155 “by expressly providing no stay or reversal of a judgment on an indictment when time is not of the essence of the offense.” Slip Op. at 6. The court also noted that the jury was instructed that it “must find separate, distinct incidents of rape for each count.” Id. at 8.  

In defendant’s second argument, he contended error for denying his motion to dismiss for insufficient evidence, pointing to the lack of physical evidence and the victim’s previous refusal to prosecute the violations. The court disagreed, noting “[o]ur courts have repeatedly held victim statements and testimony alone are sufficient evidence to support a conviction.” Id. at 10. Here, the victim’s testimony established the events in question and the constructive force by defendant necessary to support the convictions. 

In the third argument, defendant argued the jury instructions were insufficient, but the court disagreed, noting it had already addressed defendant’s arguments regarding the lack of specific dates for the offenses and separate, distinct incidents for each rape charge. The court also dispensed with defendant’s final issue, the trial court’s decision to impose consecutive sentences, explaining that it was within the trial court’s discretion and each sentence was within the presumptive range. 

 

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.

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