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.

Instructions

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

By failing to object at trial to a fatal variance between a second-degree trespass indictment and the evidence at trial, the defendant failed to preserve the issue. The court declined to invoke Rule 2 to address the issue on the merits.

The defendant failed to properly preserve the argument that there was a fatal variance between a drug trafficking indictment and the evidence at trial, where the issue was raised for the first time on appeal. The defendant never alleged a fatal variance when he moved to dismiss the charge. Rather, his motion was based on insufficiency of the evidence.

State v. Phachoumphone [Duplicated], ___ N.C. App. ___, 810 S.E.2d 748 (Feb. 6, 2018) review granted, ___ N.C. ___, ___ S.E.2d ___ (Sep 20 2018)

A defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.

State v. Phachoumphone [Duplicated], ___ N.C. App. ___, 810 S.E.2d 748 (Feb. 6, 2018) review granted, ___ N.C. ___, ___ S.E.2d ___ (Sep 20 2018)

A defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.

A fatal variance issue that is not raised at trial is waived for purposes of appeal.

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.

In a trafficking in methamphetamine case where the defendant did not object on grounds of fatal variance at trial, the issue was waived for purposes of appeal. 

The issue of fatal variance is not preserved for purposes of appeal if not asserted at trial. 

State v. Hester, 224 N.C. App. 353 (Dec. 18, 2012) aff’d per curiam, 367 N.C. 119 (Oct 4 2013)

Where a defendant failed to make a motion to dismiss on the basis of fatal variance at trial, the issue was waived for purposes of appeal.

Where a defendant failed to make a motion to dismiss on the basis of fatal variance at trial, the issue was waived for purposes of appeal.

(1) By failing to assert fatal variance as a basis for his motion to dismiss, the defendant failed to preserve the issue for appellate review.

In a felony possession of cocaine case, the defendant waived the issue of fatal variance by failing to raise it at trial. 

On appeal, the defendant argued that there was a fatal variance between the indictment charging him with possession of a firearm and the evidence introduced at trial. Specifically, the defendant argued there was a variance as to the type of weapon possessed. By failing at the trial level to raise fatal variance or argue generally about insufficiency of the evidence as to the weapon used, the defendant waived this issue for purposes of appeal.

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