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., 10/21/2021
E.g., 10/21/2021

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.

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