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., 09/22/2021
E.g., 09/22/2021

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. 

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