Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
Table of Contents
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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In this Cabarrus County case, defendant appealed his convictions for uttering a forged instrument and obtaining property by false pretenses, arguing that the indictment was fatally defective, the evidence at trial fatally varied from the indictment, and the record of the hearing improperly omitted conversations by the bench. The Court of Appeals found no error.
In considering the variance argument, the Court of Appeals pointed to State Supreme Court precedent (State v. Golder, 374 N.C. 238, 246 (2020)) as well as its own caselaw (State v. Brantley-Phillips, 278 N.C. App. 279, 286 (2021)), that "assume, without deciding" that variance issues are preserved by a "general motion to dismiss" 287 N.C. App. at 6 (internal quotation omitted). Applying this prinicple to the instant case, the Court presumed that "without so deciding, and for purposes of review of this case, Defendant's generic motion to dismiss for “sufficiency of the evidence” preserved his fatal variance objections[.]" Id. (internal quotations and alteration omitted) (emphasis in original). The Court then rejected Defendant's argument on the merits, "viewing the evidence in the light most favorable to the State and all inferences thereon, the evidence presented at trial did not fatally vary from the essential elements or “gist” of the indictments charging Defendant with uttering a forged check and obtaining property by false pretenses." Id. at 8. The Court also rejected defendant's argument that the indictments for uttering a forged instrument and obtaining a property by false pretenses contained a fatal defect. Id. at 3-4. The Court first noted, that given the jurisdictional nature of a defective indictment, a fatal defect could be raised at any time, including for the first time on appeal. It did so by looking at the elements of each offense and comparing it to the plead allegations, affirming that "[t]he indictments included the necessary elements for the crimes of uttering a forged check and obtaining property by false pretenses." Id. at 4.
Regarding defendant’s recordation argument, the court pointed to State v. Blakeney, 352 N.C. 287 (2000), to draw the distinction between recording statements in open court and statements made during private bench conferences. Mackey, 287 N.C. App. at 9. Because applicable precedent held that G.S. § 15A-1241 does not require recording of private bench conferences, and defendant did not request the recording of these conferences, there was no error by the trial court. Id.
A defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.
Fatal variance issues not raised at trial are waived on appeal.
A defendant may not challenge the validity of an indictment in an appeal challenging revocation of probation. In such circumstances, challenging the validity of the original judgment is an impermissible collateral attack.