Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

About

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.

Instructions

Navigate using the table of contents to the left or by using the search box below. Use quotations for an exact phrase search. A search for multiple terms without quotations functions as an “or” search. Not sure where to start? The 5 minute video tutorial offers a guided tour of main features – Launch Tutorial (opens in new tab).

E.g., 09/17/2021
E.g., 09/17/2021
State v. Stith, 369 N.C. 516 (Mar. 17, 2017)

The court per curiam affirmed the decision below, State v. Stith, ___ N.C. App. ___, 787 S.E.2d 40 (April 5, 2016). In that decision, the court of appeals held, over a dissent, that an indictment charging the defendant with possessing hydrocodone, a Schedule II controlled substance, was sufficient to allow the jury to convict the defendant of possessing hydrocodone under Schedule III, based on its determination that the hydrocodone pills were under a certain weight and combined with acetaminophen within a certain ratio to bring them within Schedule III. The original indictment alleged that the defendant possessed “acetaminophen and hydrocodone bitartrate,” a substance included in Schedule II. Hydrocodone is listed in Schedule II. However, by the start of the trial, the State realized that its evidence would show that the hydrocodone possessed was combined with a non-narcotic such that the hydrocodone is considered to be a Schedule III substance. Accordingly, the trial court allowed the State to amend the indictment, striking through the phrase “Schedule II.” At trial the evidence showed that the defendant possessed pills containing hydrocodone bitartrate combined with acetaminophen, but that the pills were of such weight and combination to bring the hydrocodone within Schedule III. The court concluded that the jury did not convict the defendant of possessing an entirely different controlled substance than what was charged in the original indictment, stating: “the original indictment identified the controlled substance … as hydrocodone, and the jury ultimately convicted Defendant of possessing hydrocodone.” It also held that the trial court did not commit reversible error when it allowed the State to amend the indictment. The court distinguished prior cases, noting that here the indictment was not changed “such that the identity of the controlled substance was changed. Rather, it was changed to reflect that the controlled substance was below a certain weight and mixed with a non-narcotic (the identity of which was also contained in the indictment) to lower the punishment from a Class H to a Class I felony.” Moreover, the court concluded, the indictment adequately apprised the defendant of the controlled substance at issue. The court of appeals applied the same holding with respect to an indictment charging the defendant with trafficking in an opium derivative, for selling the hydrocodone pills.

The defendant was convicted at trial of trafficking heroin, possession with intent to sell or deliver synthetic cannabinoids, and other various drug offenses in in Brunswick County. (1) During its instructions to the jury, the trial court stated that the jury should determine the guilt or innocence of this defendant and should not be influenced by evidence that other people were also charged in connection with the underlying events (who would get their own days in court). The defendant argued that this was an impermissible expression of judicial opinion on the evidence. Specifically, she argued that this instruction conveyed to the jury that the crime had occurred; that the jury should disregard all evidence that others present in the car may have been responsible; and that the defendant’s defense should be discounted. The Court of Appeals disagreed. First, the trial court expressed no opinion that the crime occurred. There was no argument denying the presence of drugs in the car, and the role of the jury in the case was to determine whether the defendant possessed them. The trial court’s acknowledgement that a crime had occurred was therefore not improper opinion. The instruction also did not command the jury to disregard evidence that others present may have been responsible. “Read in context, the trial court’s statement did not touch on Defendant’s evidence . . . [and] did not refer to the credibility of any evidence.” Hills Slip op. at 9. Finally, the instruction did not denigrate the defendant’s defense. Unlike other cases where a trial court’s statement was found to be improper, the instruction here did not disclaim the involvement of other people. Instead, the instruction specifically informed the jury that others who were charged in the case would have their own days in court. “The trial court’s instruction, therefore, did not reflect an opinion on the credibility of Defendant’s evidence but, instead, reminded the jury it must only consider the evidence presented during the course of the hearing.” Id. at 11. Further, the instruction at issue came after the close of evidence, not during evidence, lessening the risk that the jury would have taken it as an expression of opinion. Finally, the jury was instructed not to assume any opinion based on the trial court’s statements or expressions during trial immediately before receiving the contested instruction. Under the circumstances, the trial court’s instruction did not amount to an improper expression of opinion on the case.

(2) G.S. 90-89(7) lists 18 specific synthetic cannabinoids, but the substance charged in the indictment here—”methyl(2S)-2-{{1-(5-fluoropentyl)-1H-indazol-3-yl]formamido}-3,3-dimethylbutanoate (5F-ADB)”—is not listed there or elsewhere within Chapter 90 as a Schedule I substance. Wikipedia provides that the substance named in the indictment is a synthetic cannabinoid, and the State argued on appeal that this was sufficient to establish that the identity of the substance as a Schedule I drug. The court rejected this argument, pointing out that “[a] court may not look to extrinsic evidence to supplement a missing or deficient allegation in an indictment.” Hills Slip op. at 16. It found that the indictment failed to allege a necessary element of the offense (the controlled substance) and was therefore fatally flawed. The conviction was consequently vacated. Judges Dietz and Zachary concurred.

In this Pasquotank County case, the defendant was convicted of trafficking Fentanyl by possession and possession of Fentanyl with intent to sell or deliver, among other drug crimes. (1) The defendant argued on appeal that the indictment for these offenses was fatally defective because Fentanyl was not covered by the version of G.S. 90-95(h)(4) that was in effect at the time of her offense on December 31, 2006. The Court of Appeals determined that Fentanyl was an “opiate” within the meaning of the statute, which made it unlawful to possess or transport certain quantities of “opium or opiates.” The Court reasoned that though the term “opiate” typically refers to natural drugs derived from opium, like heroin, morphine and codeine, rather than synthetic drugs like Fentanyl, that definition was not universal. It agreed with the State that the General Assembly intended for the term “opiate” to include any drug that produces an opium-like effect by binding to opium receptors in the brain, regardless of whether the drug is naturally derived from opium or is synthetic or semi-synthetic. The Court noted that the common dictionary definition of the term opiate supported this broader reading as did the statutory definition of opiate. The Court rejected the defendant’s contention that the legislature’s 2018 amendment of the statute to replace the terms “opium or opiate” with “opium, opiate, or opioid” indicated that the term opiate did not include opioids, which are partially or wholly synthetic drugs produced in a lab to mimic the effects of opium. The Court held that the amendment was intended to clarify that opium, opiates, and opioids were all prohibited substances rather than to alter the applicability of the statute. 

(2) The defendant also argued on appeal that the trial court’s instructions to the jury, which reported that it was deadlocked on the second day of deliberations, were improper as they did not recite the language from G.S. 15A-1235(b) (the statute that describes how a judge should instruct a deadlocked jury). The defendant did not object to the instruction at trial, so the Court of Appeals reviewed the issue for plain error. The Court compared the instructions given by the trial court to the statutory instruction, and determined that the instructions provided contained “all of the key elements and ideas from § 15A-1235(b).” Slip op. at § 39. Thus, the Court determined that jurors was properly instructed about their duty to deliberate and the defendant did not demonstrate plain error.

The trial court erred by allowing the State, at the beginning of trial, to amend the indictment charging the defendant with trafficking in heroin to allege trafficking in opiates. In connection with a drug investigation, an officer and informant waited in a hotel room for the defendant. The defendant arrived in a vehicle and, carrying a child in his arms, approached the room. Events ensued and the defendant admitted having placed a packet of heroin in the child’s pants. The defendant was arrested and the car was searched. A search of the car produced: two digital scales; a partially smoked marijuana “blunt;” $800 in cash; a key box under the hood containing balloons of heroin, a pill bottle containing marijuana, crack cocaine and 17 hydrocodone pills; and a revolver wrapped in a sock. The hydrocodone weighed 4.62 grams; the heroin recovered from the child’s pants weighed .84 grams; and the heroin found in the car weighed 3.77 grams. The minimum amount for trafficking in heroin is 4 grams; thus, the only way for the State to prove that minimum was to prove that the defendant possessed both the heroin found in the car and the smaller quality of heroin found in the child’s pants. At a pretrial hearing, the State dismissed several charges leaving the following charges in place: possession of a firearm by a felon, possession of marijuana, possession with intent to sell or deliver cocaine, trafficking in heroin by transportation, and trafficking in heroin by possession. At this point, defense counsel informed the court that the defendant would admit to the heroin found in the child’s pants. The prosecutor then asked to amend the trafficking indictments from trafficking in heroin to trafficking in opiates. The trial court granted the State’s motion to amend, over the defendant’s objection. The defendant was convicted on the trafficking charges. The court noted that here, the amendment broadened the scope of the original indictment to allege trafficking in “opiates,” a category of controlled substances, rather than “heroin,” a specific controlled substance. It did so, the court reasoned, for the purpose of bringing an additional controlled substance—hydrocodone—within the ambit of the indictment. Although heroin is an opiate, not all opiates are heroin. Therefore, when the original indictment was amended to include hydrocodone, a new substance was effectively alleged in the indictment. The court found its holding consistent with the proposition that a critical purpose of the indictment is to enable the accused to prepare for trial. Here, the State moved to amend on the morning of trial. Until then, the defendant had justifiably relied on the original indictment in preparing his defense. In fact this concern was expressed by defense counsel in his objection to the motion to amend, specifically arguing that the defendant had no knowledge that the hydrocodone would be included in the trafficking amount. Additionally, the State sought to amend the indictment only after the defendant informed the trial court of his intention to admit possessing some, but not all, of the heroin. The logical inference of the sequence is that upon learning of the defendant’s trial strategy on the morning of trial, the State sought to thwart that strategy by broadening the scope of the indictment. The court stated: “In essence, the State was permitted to change the rules of the game just as the players were taking the field.” 

(1) Count 1 of an indictment charging the defendant with possessing a Schedule I controlled substance, “Methylethcathinone,” with intent to manufacture, sell or deliver was fatally defective. Although 4-methylethcathinone falls within the Schedule I catch-all provision in G.S. 90-89(5)(j), “Methylethcathinone” does not. Therefore, even though 4-methylethcathinone is not specifically named in Schedule I, the trial court erred by allowing the State to amend the indictment to allege “4-Methylethcathinone” and the original indictment was fatally defective. (2) Noting that the indictment defect was a jurisdictional issue, the court rejected the State’s argument that the defendant waived the previous issue by failing to object to the amendment. (3) Count two of the indictment charging the defendant with possessing a Schedule I controlled substance, “Methylone,” with intent to manufacture, sell or deliver was not fatally defective. The court rejected the defendant’s argument that the indictment was required to allege that methylone, while not expressly mentioned by name in G.S. 90-89, falls within the “catch-all” provision subsection (5)(j).

Indictments charging the defendant with drug crimes were fatally defective where they did not name controlled substances listed in Schedule III. The possession with intent and sale and delivery indictments alleged the substances at issue to be “UNI-OXIDROL,” "UNIOXIDROL 50” and “SUSTANON” and alleged that those substances were “included in Schedule III of the North Carolina Controlled Substances Act.” Neither Uni-Oxidrol, Oxidrol 50, nor Sustanon are included in Schedule III and none of these names are trade names for substances so included. 

Indictments charging the defendant with drug crimes and identifying the controlled substance as “BENZODIAZEPINES, which is included in Schedule IV of the North Carolina Controlled Substances Act[.]” were defective. Benzodiazepines is not listed in Schedule IV. Additionally, benzodiazepine describes a category of drugs, some of which are listed in Schedule IV and some of which are not. 

In a felony possession of cocaine case, the defendant waived the issue of fatal variance by failing to raise it at trial. The court however went on summarily reject the defendant’s argument on them merits. The defendant had argued that there was a fatal variance between the indictment, which alleged possession of .1 grams of cocaine and the evidence, which showed possession of 0.03 grams of cocaine.

As conceded by the State, indictments charging the defendant with possession with intent to sell and deliver marijuana and heroin within 1000 feet of a park under G.S. 90-95(e)(10) were fatally defective where they failed to allege that he was over the age of 21 at the time of the offenses.

State v. Land, 366 N.C. 550 (June 13, 2013)

The court, per curiam, affirmed the decision below in State v. Land, 223 N.C. App. 305 (2012), holding that a drug indictment was not fatally defective. Over a dissent, the court of appeals had held that when a defendant is charged with delivering marijuana and the amount involved is less than five grams, the indictment need not allege that the delivery was for no remuneration. Relying on G.S. 90-95(b)(2) (transfer of less than five grams of marijuana for no remuneration does not constitute a delivery in violation of G.S. 90-95(a)(1)), the defendant argued that the statute “creates an additional element for the offense of delivering less than five grams of marijuana -- that the defendant receive remuneration -- and that this additional element must be alleged.” Relying on State v. Pevia, 56 N.C. App. 384, 387 (1982), the court of appeals held that an indictment is valid under G.S. 90-95 even without that allegation.

The court rejected the defendant’s argument that there was a fatal variance between a sale and delivery indictment which alleged that the defendant sold the controlled substance to “A. Simpson” and the evidence. Although Mr. Simpson testified at trial that his name was “Cedrick Simpson,” not “A. Simpson,” the court rejected the defendant’s argument, stating:

[N]either during trial nor on appeal did defendant argue that he was confused as to Mr. Simpson’s identity or prejudiced by the fact that the indictment identified “A. Simpson” as the purchaser instead of “Cedric Simpson” or “C. Simpson.” In fact, defendant testified that he had seen Cedric Simpson daily for fifteen years at the gym. The evidence suggests that defendant had no question as to Mr. Simpson’s identity. The mere fact that the indictment named “A. Simpson” as the purchaser of the controlled substances is insufficient to require that defendant’s convictions be vacated when there is no evidence of prejudice, fraud, or misrepresentation. 

No fatal variance where an indictment charging sale and delivery of a controlled substance alleged that the sale was made to “Detective Dunabro.” The evidence at trial showed that the detective had since gotten married and was known by the name Amy Gaulden. Because Detective Dunabro and Amy Gaulden were the same person, known by both married and maiden name, the indictment sufficiently identified the purchaser. The court noted that “[w]here different names are alleged to relate to the same person, the question is one of identity and is exclusively for the jury to decide.”

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 816 S.E.2d 207 (2018), the court held that a manufacturing marijuana indictment was not fatally defective. The indictment alleged that the defendant “did manufacture [marijuana] . . . by producing, preparing, propagating and processing a controlled substance.” The defendant was found guilty of attempting to manufacture marijuana and other charges, and he appealed. The offense of manufacturing a controlled substance does not require an intent to distribute unless the activity constituting manufacture is preparation or compounding. Here, the indictment alleged that the defendant manufactured marijuana in four different ways, only one of which required a showing of an intent to distribute. After acknowledging that certain ways in which the defendant allegedly manufactured did not require proof that he acted with an intent to distribute, the Court of Appeals concluded that it was necessary that all four of those bases were alleged with sufficiency to confer jurisdiction on the trial court. The Supreme Court found that conclusion to be inconsistent with prior case law establishing that the use of the conjunctive in an indictment does not require the State to prove the various alternative matters alleged. Assuming without deciding that a valid indictment charging manufacturing by preparing or compounding must allege that the defendant acted with an intent to distribute, the indictment gave the trial court jurisdiction to enter judgment for manufacturing given that it also alleged that he did so by producing, propagating, and processing.

State v. Hinson, 364 N.C. 414 (Oct. 8, 2010)

For the reasons stated in the dissenting opinion below, the court reversed State v. Hinson, 203 N.C. App. 172 (Apr. 6, 2010). The defendant was indicted for manufacturing methamphetamine by “chemically combining and synthesizing precursor chemicals to create methamphetamine.” However, the trial judge instructed the jury that it could find the defendant guilty if it found that he produced, prepared, propagated, compounded, converted or processed methamphetamine, either by extraction from substances of natural origin or by chemical synthesis. The court of appeals held, over a dissent, that this was plain error as it allowed the jury to convict on theories not charged in the indictment. The dissenting judge concluded that while the trial court’s instructions used slightly different words than the indictment, the import of both the indictment and the charge were the same. The dissent reasoned that the manufacture of methamphetamine is accomplished by the chemical combination of precursor elements to create methamphetamine and that the charge to the jury, construed contextually as a whole, was correct.

An indictment charging manufacturing of methamphetamine was sufficient. The indictment alleged that the defendant “did knowingly manufacture methamphetamine.” It went on to state that the manufacturing consisted of possessing certain precursor items. The latter language was surplusage; an indictment need not allege how the manufacturing occurred.

An indictment charging trafficking by manufacturing was not defective. The court rejected the defendant’s argument that the indictment was fatally defective because it did not adequately describe the manner in which the defendant allegedly manufactured cocaine. It reasoned: “Although Defendant is correct in noting that the indictment does not explicitly delineate the manner in which he manufactured cocaine or a cocaine-related mixture, the relevant statutory language creates a single offense consisting of the manufacturing of a controlled substance rather than multiple offenses depending on the exact manufacturing activity in which Defendant allegedly engaged.”

Theories included in the trial judge’s jury instructions were supported by the indictment. The indictment charged the defendant with maintaining a dwelling “for keeping and selling a controlled substance.” The trial court instructed the jury on maintaining a dwelling “for keeping or selling marijuana.” The use of the conjunctive “and” in the indictment did not require the State to prove both theories alleged. 

The trial court erred by allowing the State, at the beginning of trial, to amend the indictment charging the defendant with trafficking in heroin to allege trafficking in opiates. In connection with a drug investigation, an officer and informant waited in a hotel room for the defendant. The defendant arrived in a vehicle and, carrying a child in his arms, approached the room. Events ensued and the defendant admitted having placed a packet of heroin in the child’s pants. The defendant was arrested and the car was searched. A search of the car produced: two digital scales; a partially smoked marijuana “blunt;” $800 in cash; a key box under the hood containing balloons of heroin, a pill bottle containing marijuana, crack cocaine and 17 hydrocodone pills; and a revolver wrapped in a sock. The hydrocodone weighed 4.62 grams; the heroin recovered from the child’s pants weighed .84 grams; and the heroin found in the car weighed 3.77 grams. The minimum amount for trafficking in heroin is 4 grams; thus, the only way for the State to prove that minimum was to prove that the defendant possessed both the heroin found in the car and the smaller quality of heroin found in the child’s pants. At a pretrial hearing, the State dismissed several charges leaving the following charges in place: possession of a firearm by a felon, possession of marijuana, possession with intent to sell or deliver cocaine, trafficking in heroin by transportation, and trafficking in heroin by possession. At this point, defense counsel informed the court that the defendant would admit to the heroin found in the child’s pants. The prosecutor then asked to amend the trafficking indictments from trafficking in heroin to trafficking in opiates. The trial court granted the State’s motion to amend, over the defendant’s objection. The defendant was convicted on the trafficking charges. The court noted that here, the amendment broadened the scope of the original indictment to allege trafficking in “opiates,” a category of controlled substances, rather than “heroin,” a specific controlled substance. It did so, the court reasoned, for the purpose of bringing an additional controlled substance—hydrocodone—within the ambit of the indictment. Although heroin is an opiate, not all opiates are heroin. Therefore, when the original indictment was amended to include hydrocodone, a new substance was effectively alleged in the indictment. The court found its holding consistent with the proposition that a critical purpose of the indictment is to enable the accused to prepare for trial. Here, the State moved to amend on the morning of trial. Until then, the defendant had justifiably relied on the original indictment in preparing his defense. In fact this concern was expressed by defense counsel in his objection to the motion to amend, specifically arguing that the defendant had no knowledge that the hydrocodone would be included in the trafficking amount. Additionally, the State sought to amend the indictment only after the defendant informed the trial court of his intention to admit possessing some, but not all, of the heroin. The logical inference of the sequence is that upon learning of the defendant’s trial strategy on the morning of trial, the State sought to thwart that strategy by broadening the scope of the indictment. The court stated: “In essence, the State was permitted to change the rules of the game just as the players were taking the field.” 

In a trafficking case, there was no fatal variance between the indictment, alleging that the defendant trafficked in opium, and the evidence at trial, showing that the substance was an opium derivative. G.S. 90-95(h)(4) “does not create a separate crime of possession or transportation of an opium derivative, but rather specifies that possession or transportation of an opium derivative is trafficking in opium,” as alleged in the indictment.

State v. Whittington, 221 N.C. App. 403 (June 19, 2012) rev’d in part on other grounds, 367 N.C. 186 (Jan 24 2014)

(1) The State conceded and the court held that an indictment for trafficking in opium by sale was fatally defective because it failed to name the person to whom the defendant allegedly sold or delivered the controlled substance. The indictment stated that the sale was "to a confidential informant[.]" It was undisputed that the name of the confidential informant was known. (2) An indictment for trafficking by delivery was defective for the same reason.

The trial court committed reversible error by allowing the State to amend an indictment charging conspiracy to engage in “trafficking to deliver Cocaine” to add the following language: “to deliver 28 grams or more but less than 200 grams of cocaine.” To allege all of the essential elements, an indictment for conspiracy to traffic in cocaine must allege that the defendant facilitated the transfer of 28 grams or more of cocaine. Here, the indictment failed to specify the amount of cocaine. The court also concluded that a defendant cannot consent to an amendment that cures a fatal defect; the issue is jurisdictional and a party cannot consent to subject matter jurisdiction.

An indictment charging the defendant with possession of methamphetamine precursors was fatally defective and the defect could not be cured by amendment. Specifically, the indictment failed to allege that the defendant possessed the precursors knowing or having reasonable cause to believe that they would be used to manufacture methamphetamine. The trial court allowed the State to amend the indictment to add this allegation at trial. The amendment was improper and the indictment was fatally defective.

Over a dissent, the court held that an indictment charging possession of methamphetamine precursors was defective because it failed to allege either the defendant’s intent to use the precursors to manufacture methamphetamine or his knowledge that they would be used to do so. The indictment alleged only that the defendant processed the precursors in question; as such it failed to allege the necessary specific intent or knowledge. 

Show Table of Contents