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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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.