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., 06/21/2024
E.g., 06/21/2024

The court modified and affirmed the decision below, 236 N.C. App. 446 (2014), holding that unauthorized use of a motor vehicle is not a lesser-included offense of possession of a stolen vehicle. The court noted that it has adopted a definitional test (as distinct from a factual test) for determining whether one offense is a lesser-included offense of another. Applying that rule, it reasoned that unauthorized use contains an essential element that is not an essential element of possession of a stolen vehicle (that the defendant took or operated a motor-propelled conveyance). The court overruled State v. Oliver, 217 N.C. App. 369 (2011) (holding that unauthorized use is not a lesser-included offense of possession of a stolen vehicle but, according to the Robinson court, mistakenly reasoning that Nickerson mandated that result), to the extent that it is inconsistent with its opinion.

In this Onslow County case, defendant appealed his convictions for larceny from a merchant by product code and misdemeanor larceny, arguing error in (1) denying his motion to dismiss, and (2) ordering him to pay an incorrect amount of restitution. The Court of Appeals found no error with the misdemeanor larceny conviction, but vacated the larceny by product code conviction and remanded for resentencing and a new order of restitution. 

In February of 2020, a Walmart manager saw defendant putting a sticker with a product code for a Tupperware container over the product code on a sewing machine box. The manager followed defendant, noticing that he went to the electronics department and several other areas of the store and placed things in his backpack, then headed to the self-checkout. At the self-checkout, defendant scanned the sticker, which resulted in a $7.98 charge for a $227 sewing machine. Defendant also had placed electronics into his backpack that he did not scan or pay for, and fled the store when the manager attempted to confront him. At trial, proof of the product code sticker, along with receipts for the merchandise stolen, were admitted into the record. 

The Court of Appeals first considered the larceny by product code charge, looking to G.S. 14-72.11(3), specifically the meaning of “created” in the sentence “[b]y affixing a product code created for the purpose of fraudulently obtaining goods or merchandise from a merchant at a reduced price.” Slip Op. at 6. Explaining that this was a matter of first impression, the court looked to the plain meaning of “create,” as well as its use in context of the section, to weigh whether this language contemplated repurposing an existing product code as defendant had done here. The court pointed out that G.S. 14-72.1(d) seemed to more appropriately reflect the repurposing done by defendant in this case, as it considered transferring a price tag for obtaining goods at a lower price. Id. at 15. This led the court to agree with defendant that the charge was not applicable, concluding:

Because the larceny [statutes] are explicit about the conduct which constitutes each level of offense, we conclude the word “created” in Section 14-72.11(3) applies to the specific scenario where (1) an actor (the defendant or another person) created a false product code “for the purpose of fraudulently obtaining goods or merchandise at a reduced price” and (2) the defendant affixed it to the merchandise.  Section 14-72.11(3) does not apply where a defendant transfers a legitimate product code printed on the price tag from one product to another, which is already punishable as a misdemeanor under Section 14-72.1.

Id. at 18. However, because the indictment still alleged the essential elements of larceny, defendant’s argument of a fatal variance failed when applied to the misdemeanor larceny charge. Additionally, the court noted that the sewing machine was left behind when defendant fled the store, justifying a reduction in the value of restitution. The court remanded to the trial court for resentencing and recalculation of restitution. 

Judge Tyson concurred by separate opinion to address the appropriate charge of shoplifting by substitution of tags under G.S. 14-72.1(d).  

Judge Standing concurred in the result only. 

In this McDowell County case, defendant appealed his conviction for felony larceny, arguing the trial court erred by denying his request for a jury instruction on the lesser included offense of attempted larceny. The Court of Appeals found no error with the trial court. 

In September of 2018, defendant placed several items in a shopping cart at a Tractor Supply store, then pushed the items through the anti-shoplifting alarms and out into the parking lot to a vehicle, disregarding staff who yelled after him that he had not paid for the items. When defendant reached the waiting car, he loaded the items into the back seat; however, after an argument with the driver, defendant threw the items out of the car into the parking lot and the vehicle drove away with defendant inside. When the matter reached trial, defendant was convicted of felony larceny under G.S. § 17-72(b)(6) because had previously been convicted of four misdemeanor larceny offenses. 

The court examined the trial court’s denial of the instruction on attempted larceny, noting that in North Carolina a judge must submit a lesser included offense to the jury unless “the State’s evidence is clear and positive as to each element of the offense charged and there is no evidence showing the commission of a lesser included offense.” Slip Op. at 6-7, quoting State v. Peacock, 313 N.C. 554, 558 (1985). Outlining each element of common law larceny, the court explained that it consisted of (1) taking of property, (2) carrying it away, (3) without the owner’s consent, and (4) with the intent to deprive the owner of the property. The court then walked through each element, as the defendant clearly took the property out the doors of the Tractor Supply store, disregarding the anti-shoplifting alarms and warnings from staff, and proceeded to a waiting car in the parking lot. Although defendant argued that leaving the items in the parking lot showed only an attempt at larceny, the court disagreed, explaining “the larceny was completed before Defendant removed the items from the vehicle and abandoned them.” Id. at 10. Because the evidence in the record clearly showed each element of larceny, the court held that an instruction on attempted larceny was not required. 

Because misdemeanor larceny and simple assault are lesser included offenses of common law robbery, the trial court erred by sentencing the defendant for all three offenses. The court rejected the State’s argument that the defendant was not prejudiced by this error because all three convictions were consolidated for judgment and the defendant received the lowest possible sentence in the mitigated range. The court noted that the State’s argument ignores the collateral consequences of the judgment. The court thus arrested judgment on the convictions for misdemeanor larceny and simple assault.

State v. Hole, 240 N.C. App. 537 (Apr. 21, 2015)

Following State v. Ross, 46 N.C. App. 338 (1980), the court held that unauthorized use of a motor vehicle “may be a lesser included offense of larceny where there is evidence to support the charge.” Here, while unauthorized use may have been a lesser included of the charged larceny, the trial court did not commit plain error by failing to instruct on the lesser where the jury rejected the defendant’s voluntary intoxication defense.

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