Smith's Criminal Case Compendium

Smith's Criminal Case Compendium


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., 06/23/2024
E.g., 06/23/2024
State v. Spivey, 368 N.C. 739 (Mar. 16, 2016)

On discretionary review of a unanimous decision of the Court of Appeals, 240 N.C. App. 264 (2015), the court reversed, holding that an indictment charging the defendant with injury to real property “of Katy’s Great Eats” was not fatally defective. The court rejected the argument that the indictment was defective because it failed to specifically identify “Katy’s Great Eats” as a corporation or an entity capable of owning property, explaining: “An indictment for injury to real property must describe the property in sufficient detail to identify the parcel of real property the defendant allegedly injured. The indictment needs to identify the real property itself, not the owner or ownership interest.” The court noted that by describing the injured real property as “the restaurant, the property of Katy’s Great Eats,” the indictment gave the defendant reasonable notice of the charge against him and enabled him to prepare his defense and protect against double jeopardy. The court also rejected the argument that it should treat indictments charging injury to real property the same as indictments charging crimes involving personal property, such as larceny, embezzlement, or injury to personal property, stating:

Unlike personal property, real property is inherently unique; it cannot be duplicated, as no two parcels of real estate are the same. Thus, in an indictment alleging injury to real property, identification of the property itself, not the owner or ownership interest, is vital to differentiate between two parcels of property, thereby enabling a defendant to prepare his defense and protect against further prosecution for the same crime. While the owner or lawful possessor’s name may, as here, be used to identify the specific parcel of real estate, it is not an essential element of the offense that must be alleged in the indictment, so long as the indictment gives defendant reasonable notice of the specific parcel of real estate he is accused of injuring.

The court further held that to the extent State v. Lilly, 195 N.C. App. 697 (2009), is inconsistent with its opinion, it is overruled. Finally, the court noted that although “[i]deally, an indictment for injury to real property should include the street address or other clear designation, when possible, of the real property alleged to have been injured,” if the defendant had been confused as to the property in question, he could have requested a bill of particulars. 

Upon trial de novo in superior court, the defendant in this case was convicted of misdemeanor injury to personal property for throwing a balloon filled with black ink onto a painting during a protest at an arts event in Asheville. The defendant received a suspended 30-day sentence and was ordered to pay $4,425 in restitution. On appeal, the defendant argued that her motion to dismiss the injury to personal property charge should have been granted due to a fatal variance, and argued that the restitution amount was improperly based on speculative value. The appellate court rejected both arguments.

The charging document alleged that the defendant had damaged the personal property of the artist, Jonas Gerard, but the evidence at trial indicated that the painting was the property of the artist’s corporation, Jonas Gerard Fine Arts, Inc., an S corporation held in revocable trust, where Jonas Gerard was listed as both an employee and the sole owner. Although this evidence established that the artist and the corporation were separate legal entities, each capable of owning property, the court held that the state’s evidence sufficiently demonstrated that the artist named in the pleading was nevertheless a person who had a “special interest” in the property and was therefore properly named in the charging instrument. The painting was not yet complete, it was still in the artist’s possession at the time it was damaged, and the artist regarded himself and the corporation as functionally “one and the same” and he “certainly held out the paintings as his own.” Finding the facts of this case analogous to State v. Carr, 21 N.C. App. 470 (1974), the appellate court held that the charging document was “sufficient to notify Defendant of the particular piece of personal property which she was alleged to have damaged,” and the trial court did not err in denying the motion to dismiss for a fatal variance.

The restitution amount was also supported by competent evidence. A witness for the state testified that a potential buyer at the show asked what the painting would cost when completed and was told $8,850, which was the gallery’s standard price for paintings of that size by this artist. The artist also testified that the canvas was now completely destroyed, and the black ink could not be painted over. The trial court ordered the defendant to pay half that amount as restitution. The appellate court held that the fact that the painting “had not yet been purchased by a buyer does not mean that the market value assigned by the trial court for restitution was speculative.” The evidence presented at trial was sufficient to establish a fair market value for the painting prior to it being damaged, and the trial court’s restitution order would not be disturbed on appeal.

In a case where a juvenile was found to be delinquent based on the offense of injury to personal property with respect to a school printer, the trial court did not err by denying the juvenile’s motion to dismiss. The petition alleged that the juvenile damaged a printer owned by the “Charlotte Mecklenburg Board of Education[.]” The juvenile argued that the trial court erred by denying the motion to dismiss because the petition failed to allege that the school was an entity capable of owning property and that the evidence at trial did not prove who owned the printer. The court held that because the juvenile conceded the fact that the school was an entity capable of owning property and the State presented evidence that the school owned the printer, the trial court did not err by denying the motion. The court noted that the juvenile’s counsel expressly acknowledged to the trial court that the Charlotte-Mecklenburg Board of Education is an entity capable of owning property. The court also noted that because the juvenile did not contest this issue at trial, it could not be raised for the first time on appeal. As to the evidence, the State presented a witness who testified to ownership of the printer. A concurring judge recognized that with respect to the petition’s failure to plead that the owner was an entity capable of owning property, had the pleading been an indictment, the issue could be raised for the first time on appeal. However, the concurring judge concluded that the owner’s capability of owning property does not need have been pleaded in a petition with the same specificity as in an indictment.

(1) There was no fatal defect in an indictment charging the defendant with injury to personal property. The defendant asserted that the indictment was invalid because it failed to allege that the owner, a church, as an entity capable of owning property. In State v. Campbell, 368 N.C. 83 (2015), the Supreme Court held that alleging ownership of property in an entity identified as a church or other place of religious worship is sufficient to allege an entity capable of owning property. Here, count one of the indictment alleged breaking or entering a place of religious worship and identified the church expressly as “a place of religious worship.” The count alleging injury to personal property simply referred to the church by name. The court found that identifying the church as a place of religious worship in the first count and subsequently listing the church as the owner of the personal property in a later count was sufficient. A contrary ruling, requiring the church to be identified as a place of worship in each portion of the indictment, “would constitute a hypertechnical interpretation of the requirements for indictments.” (2) By failing to assert a claim of fatal variance between the indictment and the evidence with respect to a charge of injury to personal property, the defendant failed to preserve the issue for appellate review. Nevertheless, the court considered the issue and rejected the defendant’s claim. The indictment alleged that the defendant injured the personal property of the church, specifically a lock on a door. The defendant asserted that the evidence showed that the damaged device was owned not by the church but rather by the lessor of the property. The court concluded however that the evidence was sufficient to allow the jury to find that the church owned the lock and that it was damaged.

The court rejected the defendant’s fatal variance argument regarding injury to real property charges, noting that the North Carolina Supreme Court recently held that an indictment charging this crime need only identify the real property, not its owner.

In this burning of personal property case where the indictment charged that the defendant set fire to the victim’s bed, jewelry, and clothing and the evidence showed only that he set fire to her bedding, no fatal variance occurred. The State was not required to show that the defendant also set fire to her jewelry and clothing. The court rejected the defendant’s argument that there was a fatal variance between the indictment’s allegation that he set fire to her bed and the evidence, which showed he set fire to her bedding. Any variance in this regard was not material, given that there was no evidence that the “bedding” was found anywhere other than on the bed. It concluded: “we are unable to discern how Defendant was unfairly surprised, misled, or otherwise prejudiced in the preparation of his defense by the indictment’s failure to identify the ‘bedding’ rather than the ‘bed.’” 

No fatal variance between an indictment charging injury to real property and the evidence at trial. The indictment incorrectly described the lessee of the real property as its owner. The indictment was sufficient because it identified the lawful possessor of the property.

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