Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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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 Haywood County case, the Supreme Court reversed a unanimous Court of Appeals decision and reinstated defendant’s conviction for possession of a firearm by a felon.
In April of 2018, defendant was pulled over for driving with a permanently revoked license. During the stop, the...
In this Warren County case, the Supreme Court affirmed the Court of Appeals decision finding that the second of defendant’s two kidnapping charges lacked support in the record and should have been dismissed because the rape supporting the kidnapping charge had already concluded before the events...
In this Yadkin County case, a defendant pled guilty to second-degree murder, attempted robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon in 2013. The defendant filed a motion for appropriate relief asserting that the indictment for the attempted...
In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.
...The defendant was charged by arrest warrant with misdemeanor injury to personal property, misdemeanor larceny, and reckless driving after he cut off the end of a truck stop’s air hose, attempted to strike his passenger with it, and then quickly fled with it when confronted by an undercover...
In this sex offense and indecent liberties case, the court held: (1) a sex offense indictment that identified the child victim as “Victim #1” was fatally defective; (2) the trial court’s erroneous failure to conduct a jury instruction conference prior to submitting the existence of a statutory...
(1) On appeal from a divided panel of the Court of Appeals, ___ N.C. ___, 818 S.E.2d 324 (2018), the court, over a dissent, reversed the Court of Appeals’ conclusion that there was insufficient evidence to send a charge of disorderly conduct, based upon the juvenile’s act of throwing a chair in...
On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 805 S.E.2d 563 (2017) in this child sex case, the court held that an indictment identifying the alleged victim only as “Victim #1” is facially invalid. Although the arrest warrant and the...
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,...
On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 808 S.E.2d 178 (2017), the court reversed the decision below holding that the short form indictment for attempted first-degree murder was not fatally defective. G.S. 15-144 provides short...
On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 805 S.E.2d 701 (2017), the court affirmed, holding that the citation charging the offense in question was legally sufficient to properly invoke the trial court’s subject matter jurisdiction. The defendant...
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....
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 166 (2017), the court reversed, holding that a habitual felon indictment was not fatally defective. The statute requires that a habitual felon indictment set forth “the date that prior felony...
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 802 S.E.2d 508 (2017), the court reversed, holding that the obtaining property by false pretenses indictment was not defective and that the evidence was sufficient to sustain the conviction on that charge...
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d 159 (2017), the court per curiam reversed for the reasons stated in the dissenting opinion below, thus holding that a larceny from a merchant indictment was not fatally defective. A majority of...
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 defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.
Invoking its discretion under Rule 2 to reach the merit of the defendant’s argument, the court held, over a dissent, that the trial court erred by failing to dismiss a larceny charge due to a fatal variance between the indictment and the evidence regarding ownership of the property. The...
On discretionary review from unanimous decision of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 812 (2016), concluding that the habitual misdemeanor larceny indictment was defective, the court reversed. The Court of Appeals concluded that the indictment was defective because it failed to...
On discretionary review from a unanimous unpublished decision of the Court of Appeals vacating a conviction for carrying a concealed gun on grounds that the indictment was fatally defective, the court reversed per curiam for the reasons stated in State v. Brice, ___ N.C. ___, ___ S.E.2d...
Affirming an unpublished opinion of the Court of Appeals, the court held that a robbery indictment was fatally defective. The indictment alleged, in relevant part, that the defendant committed the bank robbery “by way of reasonably appearing to the [named] victim . . . that a dangerous weapon...
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...
A citation charging transporting an open container of spirituous liquor was not defective. The defendant argued that the citation failed to state that he transported the fortified wine or spirituous liquor in the passenger area of his motor vehicle. The court declined the defendant’s invitation...
In an appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 774 S.E.2d 871 (2015), the court per curiam affirmed for the reasons stated in State v. Williams, 368 N.C. 620 (Jan. 29, 2016) (in a case where the defendant, a sex offender, was charged with...
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...
In a case where the defendant, a sex offender, was charged with violating G.S. 14-208.11 by failing to provide timely written notice of a change of address, the court held that the indictment was not defective. Distinguishing State v. Abshire, 363 N.C. 322 (2009), the court rejected the...
(per curiam). Because the participating Justices were equally divided, the decision below, State v. Pendergraft, 238 N.C. App. 516 (Dec. 31, 2014), was left undisturbed and without precedential value. In the decision below the court of appeals had held, over a dissent, that an...
Reversing the opinion below, State v. Ellis, __ N.C. App. __, 763 S.E.2d 574 (Oct. 7, 2014), the court held that an information charging injury to personal property was not fatally flawed. The information alleged the victims as: “North Carolina State University (NCSU) and NCSU High...
Reversing the decision below, State v. Campbell, 234 N.C. App. 551 (2014), the court held that a larceny indictment was not fatally flawed even though it failed to specifically allege that a church, the co-...
In this first-degree murder case, the trial court did not abuse its discretion by denying the defendant’s motion for a bill of particulars. The defendant argued that because the State used a short-form indictment to charge murder, he lacked notice as to which underlying felony supported the...
In this DWI case, the court rejected the defendant’s argument that the trial court erred by denying his motion to quash a citation on grounds that he did not sign that document and the charging officer did not certify delivery of the citation. Specifically, the defendant argued that the officer’...
(1) Affirming the decision below in State v. Jones, 223 N.C. App. 487 (Nov. 20, 2012), the court held that an indictment charging obtaining property by false pretenses was defective where it...
An indictment charging trafficking in stolen identities was defective because it did not allege the recipient of the identifying information or that the recipient’s name was unknown.
The court per curiam affirmed the unpublished decision of a divided panel of the court of appeals in State v. McDaris, 224 N.C. App. 399 (Dec. 18, 2012) (No. COA12-476). The court of appeals had held that a variance between the indictments and the jury instructions did not deprive the...
On review of a unanimous, unpublished decision of the court of appeals in State v. Pizano-Trejo, ___ N.C. App. ___, 723 S.E.2d 583 (2012), the members of the Supreme Court equally divided, leaving the decision below undisturbed and without precedential value. The court of appeals had...
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...
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,...
No fatal variance between indictment and the evidence in a carrying a concealed weapon case. After an officer discovered that the defendant was carrying knives and metallic knuckles, the defendant was charged with carrying a concealed weapon. The indictment identified the weapon as “a Metallic...
In this Cabarrus County case, defendant appealed his death by distribution conviction, arguing error in (1) denial of his motion to dismiss, and (2) improperly admitting Rule of Evidence 404(b) evidence. The Court of Appeals found no error.
In March of 2020, defendant sold drugs,...
In this Wayne County case, defendant appealed judgments for possession of heroin and cocaine and resisting a public officer, arguing error in failing to order a competency hearing sua sponte and ineffective assistance of counsel. Defendant’s appellate counsel also filed a brief under ...
In this Cleveland County case, defendant appealed his conviction for aiding and abetting possession of a firearm by a felon, arguing a fatally defective indictment and error in dismissing his motion to dismiss for insufficient evidence. The Court of Appeals disagreed on both points and found no...
In this Henderson County case, defendant appealed his conviction for trafficking opium or heroin by possession, arguing error in the denial of his requested instruction that the jury must find he knew what he possessed was fentanyl. The Court of Appeals found no error.
In March of 2018...
In this Union County case, defendant appealed his convictions for attempted first degree murder, going armed to the terror of the people, possession of a handgun by a minor, and discharge of a firearm within city limits, arguing error by insufficient findings to justify closure of the courtroom...
In this Chatham County case, the Court of Appeals overturned defendant’s conviction for possession of a firearm at a demonstration, finding that the indictment failed to specify the type of land where the violation took place.
Defendant attended a protest in Hillsborough over the removal...
In this Wake County case, a drug investigator was working at a local FedEx facility and noticed a package from California with the seams taped shut and with an apparently fake phone number for the recipient. The officer removed the package from the conveyor belt and searched law enforcement...
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 and the record of the hearing omitted conversations by the bench. The Court of Appeals found no error. ...
In this Graham County case, defendant appealed the denial of his motion for appropriate relief (MAR) due to a flaw in the indictment, arguing that the indictment failed to allege a legal entity capable of owning property. The Court of Appeals affirmed the denial of defendant’s MAR.
The...
In this Wake County case, defendant appealed his conviction for second-degree rape due to a missing element in the charging indictment, and his conviction for first-degree kidnapping due to insufficiency of the evidence. The Court of Appeals found the charging indictment was flawed and vacated...
In this Durham County case, defendant appealed his conviction for felony animal cruelty, arguing that (1) the removal of the name of a horse from the indictment rendered it invalid, and (2) the prosecutor’s recitation of caselaw during closing argument represented gross impropriety. The Court of...
In this Beaufort County case, defendant appealed jury verdicts of guilty for second degree kidnapping and assault on a female. Defendant provided three grounds for appeal, (1) denial of his motion to dismiss the kidnapping charge based upon the State’s failure to offer evidence of intent, (2)...
In this Randolph County case, the defendant appealed from his conviction for statutory rape, arguing that the trial court erred in (1) denying his motion to suppress evidence from his interrogation because he requested and did not receive counsel, and (2) denying his motion to dismiss because...
In this Surry County juvenile case, a petition was filed alleging that the juvenile committed extortion by obtaining a digital image of a victim, without her knowledge or consent, in which she was in only her bra and underwear. The petition also alleged that the juvenile used the image to...
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...
In this human trafficking case involving multiple victims, (1) the trial court did not abuse its discretion by allowing the defendant to represent himself; (2) the indictments were sufficient to convey subject matter jurisdiction; (3) the trial court did not err by entering judgments for...
In this intimidating a witness case, the indictment alleged that the defendant told one person, Derstine, to tell another, Ramos, that the defendant would have Ramos deported if he testified against the defendant. Evidence at trial tended to show that Ramos did not actually receive this message...
A confidential informant called the local police department, describing the defendant’s appearance and stating that the defendant would be at a certain location with a significant amount of methamphetamine in his bookbag. When the officers arrived at the scene, they found the defendant,...
In this case involving possession of a firearm by a felon and carrying a concealed weapon, (1) binding caselaw required that the defendant’s conviction for felon in possession be vacated because the indictment was fatally defective; and (2) the trial court’s ruling on the defendant’s motion to...
The defendant in this case was charged with sexual activity by a substitute parent under G.S. 14-27.31. The defendant lived at the home of the victim and her mother, and he was the father of the victim’s sister. In 2016, while the victim’s mother was out of the house, the defendant engaged...
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...
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...
(1) In this Montgomery County case, the defendant was convicted of indecent liberties with a child and attaining the status of habitual felon. (1) The defendant argued on appeal that the indecent liberties indictment was fatally defective because it identified the alleged victim only by her...
The defendant was charged and convicted of felonious breaking and entering, felonious larceny after breaking and entering, and attaining the status of habitual felon for breaking into a neighbor’s house on April 24, 2018 and stealing a coffee canister of cash.
(1) The...
The defendant was tried and convicted of two counts of first-degree statutory sex offense and two counts of indecent liberties in Union County. The convictions were affirmed on appeal, but the North Carolina Supreme Court found an error with the sentence and remanded for resentencing. On remand...
This Harnett County case involved a husband and wife who indemnified a bond on behalf of an employee. The employee was roommates with the couple’s son. When the employee disappeared, the family members forcibly apprehended him, causing a traffic accident and apparently discharging a gun. The...
(1) The defendant was indicted for trafficking in MDMA, among other charges. When the case came on for trial, the trial judge called in prospective jurors and questioned them about undue hardships and conflicts with the parties and informed them of the charges against the defendant. The...
The defendant was charged with three counts of breaking and entering, three counts of larceny after breaking and entering, two counts of obtaining property by false pretenses, and one count of felonious possession of stolen goods. The State ostensibly indicted the defendant as an habitual felon...
The defendant was convicted by a jury of assault inflicting serious bodily injury and assault on a female based on an argument and fight with the mother of his child. He pushed her down, threw her head into the concrete, punched her, dragged her, and flung her onto the hood of a car. Among other...
Defendant was charged by citation with misdemeanor larceny under G.S. 14-72. The prosecutor amended the citation by striking through the charging language and handwriting the word “shoplifting” on the citation, along with the prosecutor’s initials and the date. The defendant entered a guilty...
In this habitual larceny case where the defendant was sentenced as a habitual felon, the court held that the habitual larceny indictment was not facially invalid for failure to allege all essential elements of the offense. The defendant argued that the habitual larceny indictment was facially...
The defendant pled guilty to controlled substance offenses pursuant to a bill of information and waiver of indictment. In an MAR, the defendant argued that the pleadings were defective and the trial court lacked jurisdiction because the waiver of indictment was not signed by his attorney. The...
An indictment charging the defendant with discharging a weapon into an occupied dwelling was not fatally defective. The defendant argued that the indictment was defective because it charged him with discharging a weapon into occupied property causing serious bodily injury, but failed to allege...
An indictment charging the defendant with felony larceny was not defective. The indictment alleged that the victim was “Sears Roebuck and Company.” The defendant argued that although the indictment contains the word “company,” it does not identify the victim as a company or other corporate...
In a case involving a conviction for second-degree murder following a fatal motor vehicle accident, the indictment was sufficient. On appeal the defendant argued that the indictment only charged him with Class B1 second-degree murder, a charge for which he was acquitted, and not the Class B2...
The trial court erred by denying the defendant’s motion for appropriate relief alleging that the trial court lacked subject matter jurisdiction to enter judgment where the defendant was charged with a bill of information that did not include or attach a waiver of indictment. G.S. 15A-642 allows...
Although the State improperly circumvented district court jurisdiction by simultaneously obtaining a presentment and an indictment from a grand jury, the proper remedy is to remand the charges to district court, not dismissal. The defendant was issued citations for impaired driving and operating...
An indictment charging statutory rape of a person who is 13, 14, or 15 years old was facially defective where it did not identify the victim by name, identifying her only as “Victim #1.” An indictment charging this crime must name the victim. The indictment need not include the victim’s full...
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.
An embezzlement indictment was not fatally defective. The indictment alleged that the defendant:
unlawfully, willfully and feloniously did embezzle three thousand nine hundred fifty seven dollars and eighty one cents ($3,957.81) in good and lawful United States...
The indictment properly charged resisting a public officer. On appeal the defendant argued that the indictment was invalid because it failed to sufficiently allege the officer’s public office. The indictment alleged that the defendant “did resist, delay and obstruct Agent B.L. Wall, a public...
An indictment charging assault with a deadly weapon inflicting serious injury on victim E.D. was not defective. The defendant asserted that the indictment was defective because it failed to include the word “assault” in its description of the offense. The court concluded that while the...
The trial court erred by allowing the State to amend a second-degree kidnapping indictment. The indictment alleged that the defendant restrained the victim for the purpose of facilitating the felony of assault inflicting serious injury. However, that offense is a misdemeanor. During trial, the...
The court rejected the defendant’s argument that the trial court lacked subject matter jurisdiction over a misdemeanor stalking charge. Although the defendant argued that there was no evidence in the record of a presentment, the amended record shows that a presentment was issued by the grand...
A habitual felon indictment was fatally defective. Citing precedent, the court noted that a habitual felon indictment must state two dates for each prior felony conviction: the date that the defendant committed the felony and the date that the defendant was convicted of the felony. These dates...
The court rejected the defendant’s argument that there was a fatal variance between the indictment for misdemeanor larceny and the evidence at trial. Specifically, the defendant argued that there was a fatal variance between the allegation that he stole a checkbook from Glenn Cox and the...
(1) In this robbery case, the indictment was not fatally defective for misspelling the defendant’s middle name. The indictment incorrectly alleged the defendant’s middle name as “Rashawn.” His actual middle name is “Rashaun.” A minor misspelling of a defendant’s name does not constitute a fatal...
On remand from the state Supreme Court for reconsideration in light of State v. Brice, ___ N.C. ___, 806 S.E.2d 32 (2017) (habitual misdemeanor larceny indictment was not defective; a violation of G.S. 15A-928 is not jurisdictional and cannot be raised on appeal where the defendant raised no...
Over a dissent, the court held that the trial court did not err by denying the defendant’s motion to dismiss a charge of resisting a public officer on grounds of fatal variance. The indictment specified that the defendant resisted by running away from the officer on foot. The evidence showed...
There was no fatal defect in an indictment charging the defendant with misdemeanor unlicensed bail bonding in violation of G.S. 58-71-40. The indictment alleged that the defendant “did act in the capacity of, and performed the duties, functions, and powers of a surety bondsman and runner,...
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...
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...
An indictment charging obtaining property by false pretenses was defective where it charged the defendant with obtaining an unspecified amount of “credit” secured through the issuance of an unidentified “loan” or “credit card.” This vague language failed to describe what was obtained with...
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...
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.
(1) In this habitual misdemeanor larceny case, the court rejected the defendant’s argument that the trial court created a fatal variance when it instructed the jury on a theory of acting in concert not alleged in the indictment. Citing prior case law, the court held that the theory of acting in...
Although there was a fatal variance between the allegation in a felony larceny indictment as to the owner of the stolen property and the proof of ownership presented at trial, the variance did not warrant dismissal. The indictments alleged that all of the stolen items, a television, gaming...
A fatal variance issue that is not raised at trial is waived for purposes of appeal.
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...
Indictments charging the defendant with failing register under G.S. 14-208.11(a)(2) and (a)(7) were not fatally defective where the indictments substantially tracked the language of the statute.
(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...
There was no fatal variance in a possession of burglar’s tools indictment. The indictment identified the tools as a prybar and bolt cutters. The trial court instructed the jury that it could find the defendant guilty if he possessed either a prybar, bolt cutters, or work gloves. The court held...
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...
There was no fatal variance in a larceny by employee indictment where the indictment alleged that the defendant’s employer was “Precision Auto Care, Inc. (PACI), a corporation” but the evidence at trial showed the actual name of the corporation to be “Precision Franchising, Inc.” doing business...
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however...
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however...
There was no fatal variance in a larceny by employee indictment where the indictment alleged that the defendant’s employer was “Precision Auto Care, Inc. (PACI), a corporation” but the evidence at trial showed the actual name of the corporation to be “Precision Franchising, Inc.” doing business...
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however...
In this child abuse case the trial court erred by allowing the State to amend the indictment. The defendant was indicted for negligent child abuse under G.S. 14-318.4(a5) after police discovered her unconscious in her apartment with track marks on her arms and her 19-month-old child exhibiting...
The State conceded, and the court held, that the indictment was insufficient to support a conviction for discharging a firearm within an enclosure to incite fear. The indictment improperly alleged that the defendant discharged a firearm “into” an occupied structure; the statute, G.S. 14-34.10,...
The indictment properly charged the defendant with burning of a building in violation of G.S. 14-62. The indictment alleged that the “defendant . . . unlawfully, willfully and feloniously did set fire to, burn, cause to be burned and aid the burning” of a specified building. The court rejected...
The trial court committed plain error in this safecracking case by instructing the jury that it could convict the defendant if it determined that he obtained the safe combination “by surreptitious means” when the indictment charged that he committed the offense by means of “a fraudulently...
In this second-degree sex offense case, the court vacated and remanded for entry of judgment on attempted sexual offense where the indictment charged the defendant only with an attempted, not a completed, sex offense. The indictment, labeled “Second Degree Sexual Offense,” alleged that the...
In this second-degree sex offense case, the court vacated and remanded for entry of judgment on attempted sexual offense where the indictment charged the defendant only with an attempted, not a completed, sex offense. The indictment, labeled “Second Degree Sexual Offense,” alleged that the...
In this second-degree sexual exploitation of a minor case, there was no fatal variance between the indictments and the evidence presented at trial. The indictments alleged a receipt date of December 17, 2009; the evidence established the date of receipt as October 18, 2009. A variance regarding...
An indictment alleging possession of stolen property was defective where it failed to allege that the property was stolen or that the defendant knew or had reason to believe that it was stolen.
Exercising discretion to consider a fatal variance argument with respect to a theft of money and an iPod from a frozen yogurt shop, the court held that a fatal variance existed. The State alleged that the property belonged to Tutti Frutti, LLC, but it actually belonged to Jason Wei, the son of...
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.
Fatal variance issues not raised at trial are waived on appeal.
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...
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...
A statement of charges, alleging that the defendant engaged in disorderly conduct in or near a public building or facility sufficiently charged the offense. Although the statute uses the term “rude or riotous noise,” the charging instrument alleged that the defendant did “curse and shout” at...
There was no fatal variance in an indictment where the State successfully moved to amend the indictment to change the date of the offense from May 10, 2013 to July 14, 2013 but then neglected to actually amend the charging instrument. Time was not of essence to any of the charged crimes and the...
There was no fatal variance in an indictment where the State successfully moved to amend the indictment to change the date of the offense from May 10, 2013 to July 14, 2013 but then neglected to actually amend the charging instrument. Time was not of essence to any of the charged crimes and the...
The State was not required to prove a specific case number alleged in an indictment charging deterring an appearance by a State witness in violation of G.S. 14-226(a). The case number was not an element of the offense and the allegation was mere surplusage.
A two-count indictment properly alleged habitual misdemeanor assault. Count one alleged assault on a female, alleging among other things that the defendant’s conduct violated G.S. 14-33 and identifying the specific injury to the victim. The defendant did not contest the validity of this count....
Over a dissent, the court held that an obtaining property by false pretenses indictment was not defective where it alleged that the defendant obtained “a quantity of U.S currency” from the defendant. The court found that G.S. 15-149 (allegations regarding larceny of money) supported its holding...
An indictment charging discharging a firearm into an occupied dwelling was not defective. The indictment alleged that the defendant “discharge[d] a firearm to wit: a pistol into an apartment 1727 Clemson Court, Kannapolis, NC at the time the apartment was occupied by Michael Fezza” and that the...
Where the indictment charged the defendant with sexual offense in violation of G.S. 14-27.4(a)(1) (first-degree statutory sex offense with a child under the age of 13), the trial court erred by instructing the jury on sexual offense with a child in violation of G.S. 14-27.4A(a) (statutory sexual...
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.
In a failure to register as a sex offender case, the indictment was not defective on grounds that did not allege that the defendant failed to provide “written notice” of his address change “within three business days.” Citing prior case law, the court noted that it has already rejected arguments...
The trial court erred by instructing the jury that it could find that the defendant attained habitual felon status based on a prior conviction for selling cocaine where the indictment did not allege that conviction. The indictment alleged three predicate felonies to establish habitual felon...
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...
Because it is a jurisdictional issue, a defendant’s argument that a criminal indictment is defective may be raised for the first time on appeal notwithstanding the defendant’s failure to contest the validity of the indictment at trial.
The issue of fatal variance is not preserved for purposes of appeal if not asserted at trial.
(1) Indictments charging kidnapping with respect to victims under 16 were not defective. The indictments alleged that the defendant unlawfully confined and restrained each victim “without the victim’s consent.” The court rejected the defendant’s argument that because the indictments failed to...
There was no fatal variance between a kidnapping indictment that named “Vera Alston” as a victim and the evidence at trial that showed the victim’s last name was “Pierson.” The court concluded:
[T]he evidence is undisputed that one of defendant’s victims for kidnapping and...
(1) In a case involving charges of obtaining property by false pretenses arising out of alleged insurance fraud, the defendant waived the issue of fatal variance by failing to raise it at trial. (2) Counsel rendered ineffective assistance by failing to move to dismiss on grounds of fatal...
(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), “...
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...
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...
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...
In a carrying a weapon on educational property case, the court rejected the defendant’s argument that there was a fatal variance between the indictment, which alleged that the defendant possessed weapons at “High Point University, located at 833 Montlieu Avenue” and the evidence, which showed...
An indictment charging failing to notify the sheriff of a change in address was not defective. The indictment alleged, in relevant part, that the defendant “fail[ed] to register as a sex offender by failing to notify the Forsyth County Sheriff’s Office of his change of address.” The defendant...
The trial court did not err by allowing the State to amend the victim’s name as stated in an indictment for assault with a deadly weapon from “Christina Gibbs” to “Christian Gibbs.”
Indictments charging obtaining property by false pretenses were not defective. The charges arose out of the defendant’s acts of approaching two individuals (Ms. Hoenig and Ms. Harward), falsely telling them their roofs needed repair, taking payment for the work and then performing shoddy work or...
The trial court committed plain error by instructing the jury on sexual offense with a child by an adult offender under G.S. 14-27.4A when the indictment charged the defendant with first-degree sexual offense in violation of G.S. 14-27.4(a)(1), a lesser-included of the G.S. 14-27.4A crime. The...
In this sexual assault case, the State was not excused by G.S. 130A-143 (prohibiting the public disclosure of the identity of persons with certain communicable diseases) from pleading in the indictment the existence of the non-statutory aggravating factor that the defendant committed the sexual...
In this malicious maiming case, the trial court did not err by instructing the jury on a theory that was not alleged in the indictment. The indictment alleged that the defendant “put out” the victim’s eye. The jury instructions told the jury it could convict if it found that the defendant “...
(1) In a failing to register case the indictment was not defective. The indictment alleged that the defendant failed to provide 10 days of written notice of his change of address to “the last registering sheriff by failing to report his change of address to the Wilkes County Sheriff’s Office.”...
In a failing to register case the trial court did not err by allowing the State to amend the indictment and expand the dates of offense from 7 November 2012 to June to November 2012. It reasoned that the amendment did not substantially alter the charge “because the specific date that defendant...
An indictment charging felony peeping was not defective. Rejecting the defendant’s argument that the indictment was defective because it failed to allege that the defendant’s conduct was done without the victim’s consent, the court concluded that “any charge brought under N.C.G.S. § 14-202...
In this DWI case, the court rejected the defendant’s argument that the State deprived him of equal protection by initiating the proceeding using a presentment instead of a citation. A rational basis (judicial economy) supported use of a presentment.
Noting that the sufficiency of a petition alleging a juvenile to be delinquent is evaluated by the same standards that apply to indictments, the court held that petitions alleging two acts of sexual offense and two acts of crime against nature were sufficient. In addition to tracking the...
Noting that the sufficiency of a petition alleging a juvenile to be delinquent is evaluated by the same standards that apply to indictments, the court held that petitions alleging two acts of sexual offense and two acts of crime against nature were sufficient. In addition to tracking the...
There was no fatal variance in a resisting an officer case where the indictment alleged that the defendant refused to drop what was in his hands (plural) and the evidence showed that he refused to drop what was in his hand (singular). The variance was not material.
A short form indictment charging the defendant with attempted first degree murder was defective. The indictment failed to allege that the defendant acted with “malice aforethought” as required by G.S. 15-144 (short form murder indictment). The court remanded for entry of judgment on the lesser...
Where the warrant charging contributing to the abuse or neglect of a juvenile alleged, in part, that the defendant knowingly caused, encouraged, and aided the child “to commit an act, consume alcoholic beverage,” the State was not prohibited from showing that the defendant also contributed to...
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...
An indictment charging the defendant with violating G.S. 14-208.18(a) (prohibiting registered sex offenders from being “[w]ithin 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the...
The superior court lacked jurisdiction to try the defendant for resisting arrest where the defendant was tried on a misdemeanor statement of charges filed in superior court. The State filed the statement of charges on its own, without an objection to the magistrate’s order having been made by...
Following State v. Jeffers, 48 N.C. App. 663, 665-66 (1980), the court held that G.S. 15A-928 (allegation and proof of previous convictions in superior court) does not apply to the crime of felon in possession of a firearm.
No double jeopardy violation occurs when the State retries a defendant on a charging instrument alleging the correct offense date after a first charge was dismissed due to a fatal variance.
The superior court lacked jurisdiction to try the defendant for possession of lottery tickets in violation of G.S. 14-290. An officer issued the defendant a citation for violating G.S. 14-291 (acting as an agent for or on behalf of a lottery). The district court allowed the charging document to...
The trial court erred by denying the defendant’s motion to dismiss a charge of first-degree kidnapping where the indictment alleged that the confinement, restraint, and removal was for the purpose of committing a felony larceny but the State failed to present evidence of that crime. Although the...
In a food stamp fraud case, the State is not required to allege in the indictment that the defendant aided and abetted the crime; aiding and abetting is a theory of liability that need not be included in the indictment.
(1) A short form indictment under G.S. 15-144.1 was sufficient to charge the defendant with attempted statutory rape of a 13, 14, or 15 year old. The defendant had argued that the statutory short form does not apply to an indictment alleging statutory rape of a 13 year old. (2) The indictment...
(1) An indictment for contributing to the delinquency/neglect of a minor was not defective. The indictment tracked the statutory language but did not specify the specific acts at issue. An indictment for a statutory offense is sufficient if the offense is charged in the words of the statutes, or...
The trial court lacked jurisdiction to sentence the defendant for larceny of goods worth more than $1,000 when the indictment charged that the defendant stole “property having a value of $1,000.”
Although the trial court erred when instructing the jury on first-degree burglary, no plain error occurred. The first-degree burglary indictment alleged that the defendant entered the dwelling with intent to commit larceny. The trial court instructed the jury that it could find the defendant...
The trial court did not err by allowing the State to amend an embezzlement indictment. The indictment originally alleged that “the defendant . . . was the employee of MBM Moving Systems, LLC . . . .” The amendment added the words “or agent” after the word “employee.” The court rejected the...
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.
(1) Indictments charging the defendant with obtaining property by false pretenses were not defective. The indictments alleged in part that “[t]he defendant sold bread products to the victim that were advertised and represented as Gluten Free when in fact the defendant knew at the time that the...
The trial court erred by instructing the jury on the offense of discharging a firearm into a vehicle that is in operation under G.S. 14-34.1(b) where the indictment failed to allege that the vehicle was in operation. However, because the indictment properly charged discharging a firearm into an...
(1) An indictment charging statutory rape of a 13, 14, or 15 year old was not defective because it alleged that the defendant did “carnally know” the victim. The court rejected the argument that the indictment was required to allege that “vaginal intercourse” occurred, concluding that the two...
In an embezzlement case, no fatal variance occurred where the indictment alleged that Smokey Park Hospitality, Inc., d/b/a Comfort Inn had an interest in the property. Although the evidence showed that Smokey Park Hospitality never owned the hotel, it acted as a management company and ran the...
An indictment for felon in possession of a firearm was fatally defective because the charge was included as a separate count in a single indictment also charging the defendant with assault with a deadly weapon. G.S. 14-415.1(c) requires that possession of a firearm by a felon be charged in a...
In an appeal from a conviction obtained in the Eve Carson murder case, the court held that a robbery indictment was not fatally defective. The indictment alleged that the defendant:
unlawfully, willfully and feloniously did steal, take, and carry away and attempt to steal, take...
Five indecent liberties indictments were sufficient where they were couched in the language of the statute and specified different and non-overlapping time frames. The court rejected the defendant’s argument that the indictments were insufficient because they included “non-specific allegations...
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.
The trial court committed plain error by instructing the jury that it could find the defendant guilty of conspiracy if the defendant conspired to commit felony breaking and entering or felony larceny where the indictment alleged only a conspiracy to commit felony breaking or entering.
No fatal variance occurred in an identity theft case. The defendant argued that there was a fatal variance between the indictment, which alleged that he possessed credit card numbers belonging to four natural persons and the evidence, which showed that three of the credit cards were actually...
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...
Although the indictment failed to specify G.S. 14-208.9(a) (sex offender registration violation) as the statute violated, this omission alone did not create a fatal defect.
An indictment charging failing to notify the sheriff’s office of change of address by a registered sex offender under G.S. 14-208.9 was defective where it failed to allege that the defendant was a person required to register.
In a murder case in which the defendant relied on an alibi defense, the trial court did not err by allowing the State to amend the date of the offense stated in the indictment from December 28, 2009, to December 27, 2009. The court noted that because the defendant’s alibi witness’s testimony...
By failing to assert fatal variance as a basis for his motion to dismiss, the defendant failed to preserve the issue for appellate review. Even if the issue had been preserved, it had no merit. Defendant argued that there was a fatal variance between the name of the victim in the indictment, You...
(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.
There was no fatal defect in an indictment for felony assault on a handicapped person. The indictment alleged, in part, that the defendant unlawfully, willfully, and feloniously assaulted and struck “a handicapped person by throwing Carol Bradley Collins across a room and onto the floor and by...
There was no fatal defect in an indictment for felony assault on a handicapped person. The indictment alleged, in part, that the defendant unlawfully, willfully, and feloniously assaulted and struck “a handicapped person by throwing Carol Bradley Collins across a room and onto the floor and by...
When charging carrying a concealed gun under G.S. 14-269, the exception in G.S. 14-269(a1)(2) (having a permit) is a defense not an essential element and need not be alleged in the indictment.
(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...
The trial court lacked jurisdiction over a habitual felon charge where the habitual felon indictment was returned before the principal felonies occurred.
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...
In a felony possession of cocaine case, the defendant waived the issue of fatal variance by failing to raise it at trial.
Following State v. Harris, 219 N.C. App. 590 (Apr. 3, 2012) (an indictment charging the defendant with being a sex offender unlawfully on the premises of a place intended primarily for the use, care, or supervision of minors in violation of G.S. 14-208.18 was defective because it failed...
An indictment charging the defendant with larceny from a merchant by removal of antitheft device in violation of G.S. 14-72.11 was defective in two respects. The elements of this offense include a larceny (taking the property of another, carrying it away, without the consent of the possessor,...
An indictment charging the defendant with being a sex offender unlawfully on the premises of a place intended primarily for the use, care, or supervision of minors in violation of G.S. 14-208.18 was defective. According to the court the “essential elements” of the charged offense are that the...
A criminal summons charging the defendant with impaired driving was not defective on grounds that it failed to allege the exact hour and minute that the offense occurred.
An indictment for resisting an officer was not defective. The indictment alleged that the defendant resisted “by not obeying [the officer’s] command [to stop]." The court rejected the defendant’s argument that the indictment failed to state with sufficient particularity the manner in which the...
There was no fatal variance between an indictment charging assault with a deadly weapon with intent to kill inflicting serious injury and the evidence at trial. The indictment alleged the deadly weapon to be a handgun while the trial evidence showed it was an AK-47 rifle. The court reasoned: “...
In an impaired driving case, citation language alleging that the defendant acted “willfully” was surplusage.
(1) In a larceny by employee case, the trial court erred by allowing the State to amend the bill of indictment. The indictment stated that the defendant was an employee of “Cape Fear Carved Signs, Incorporated.” The State moved to amend by striking the word “Incorporated,” explaining that the...
(COA10-1485). Because the defendant was never arraigned on a second indictment (that did not indicate that it was a superseding indictment), the second indictment did not supersede the first indictment.
In sexual assault case involving a child victim, there was a fatal variance between the indictment, that alleged an offense date of March 30, 2000 – December 31, 2000, and the evidence, which showed that the conduct occurred in the Spring of 2001. The State never moved to amend the indictment....
A juvenile petition alleging felony larceny was fatally defective because it contained no allegation that the alleged victim, the Crossings Golf Club, was a legal entity capable of owning property.
An indictment charging felonious speeding to elude arrest and alleging an aggravating factor of reckless driving was not required to specify the manner in which the defendant drove recklessly.
A habitual felon indictment was not defective where it described one of the prior felony convictions as “Possess Stolen Motor Vehicle” instead of Possession of Stolen Motor Vehicle. The defendant’s argument was “hypertechnical;” the indictment sufficiently notified the defendant of the elements...
A conspiracy to commit armed robbery indictment was defective when it did not allege an agreement to commit an unlawful act. The court rejected the State’s argument that the indictment's caption, which identified the charge as "Conspiracy to Commit Robbery with a Dangerous Weapon," and the...
Sentencing factors that might lead to an aggravated sentence need not be alleged in the indictment.
A burglary indictment alleging that the defendant intended to commit “unlawful sex acts” was not defective.
Because an arrest warrant charged the defendant with a violation of G.S. 67-4.2 (failing to confine a dangerous dog), it could not support a conviction for a violation of G.S. 67-4.3 (attack by a dangerous dog). Even though the warrant cited G.S. 67-4.2, it would have been adequate if it had...
The trial court’s failure to dismiss the original indictment after a superseding indictment was filed did not render the superseding indictment void or defective.
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...
An indictment for felonious larceny that failed to allege ownership in the stolen handgun was fatally defective.
In an indecent liberties case, the trial judge’s jury instructions were supported by the indictment. The indictment tracked the statute and did not allege an evidentiary basis for the charge. The jury instructions, which identified the defendant’s conduct as placing his penis between the child’s...
There was no fatal variance between a juvenile delinquency petition for indecent liberties alleging an offense date of November 14, 2008, and the evidence which showed an offense date of November 7-9, 2008. The juvenile failed to show that his ability to present an adequate defense was...
Stating in dicta that an indictment alleging obtaining property by false pretenses need not identify a specific victim.
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...
A defendant may challenge the sufficiency of an indictment even after pleading guilty to the charge at issue.
An obstruction of justice indictment properly charged a felony when it alleged that the act was done “with deceit and intent to interfere with justice.” G.S. 14-3(b) provides that a misdemeanor receives elevated punishment when done with “deceit and intent to defraud.” The language “deceit and...
An indictment charging accessory after the fact to first-degree murder was sufficient to support a conviction of accessory after the fact to second-degree murder. The indictment alleged that a felony was committed, that the defendant knew that the person he assisted committed that felony, and...
(1) An indictment for breaking or entering a motor vehicle alleging that the vehicle was the personal property of “D.L. Peterson Trust” was not defective for failing to allege that the victim was a legal entity capable of owning property. The indictment alleged ownership in a trust, a legal...
(1) Although the State is not required to allege the felony or larceny intended in an indictment charging breaking or entering a vehicle, if it does so, it will be bound by that allegation. (2) An indictment properly alleges the fifth element of breaking and entering a motor vehicle—with intent...
A burglary indictment does not need to identify the felony that the defendant intended to commit inside the dwelling.
There was no fatal variance between a forgery indictment and the evidence presented at trial. The indictment charged the defendant with forgery of “an order drawn on a government unit, STATE OF NORTH CAROLINA, which is described as follows: NORTH CAROLINA UNIFORM CITATION.” The evidence showed...
A juvenile petition sufficiently alleged that the juvenile was delinquent for possession of a weapon on school grounds in violation of G.S. 14-269.2(d). The petition alleged that the juvenile possessed an “other weapon,” specified as a “steel link from chain.” The evidence showed that the...
When a conspiracy indictment names specific individuals with whom the defendant is alleged to have conspired and the evidence shows the defendant may have conspired with others, it is error for the trial court to instruct the jury that it may find the defendant guilty based upon an agreement...
In a child sex case, there was substantial evidence that the defendant abused the victim during the period alleged in the indictment and specified in the bill of particulars (Feb. 1, 2001 – Nov. 20, 2001) and at a time when the defendant was sixteen years old and thus could be charged as an...
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...
No fatal variance existed when a burglary indictment alleged that defendant broke and entered “the dwelling house of Lisa McCormick located at 407 Ward’s Branch Road, Sugar Grove Watauga County” but the evidence at trial indicated that the house number was 317, not 407. On this point, the court...
There was no fatal variance between a warrant charging assault on a government officer under G.S. 14-33(c)(4) and the evidence at trial. The warrant charged that the assault occurred while the officer was discharging the duty of arresting the defendant for communicating threats but at trial the...
Fact that indictment charging discharging a barreled weapon into an occupied dwelling used the term “residence” instead of the statutory term “dwelling” did not result in a lack of notice to the defendant as to the relevant charge.
Indictment alleging that the defendant discharged a barreled weapon into an occupied residence properly charged the Class D version of this felony (shooting into occupied dwelling or occupied conveyance in operation) even though it erroneously listed the punishment as the Class E version (...
Felon in possession indictment that listed the wrong date for the prior felony conviction was not defective, nor was there a fatal variance on this basis (indictment alleged prior conviction date of December 8, 1992 but judgment for the prior conviction that was introduced at trial was dated...
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...
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...
Indictment charging assault on a government officer under G.S. 14-33(c)(4) need not allege the specific duty the officer was performing and if it does, it is surplusage.
Indictment charging malicious conduct by prisoner under G.S. 14-258.4 need not allege the specific duty the officer was performing and if it does, it is surplusage.
Short-form murder indictment put the defendant on notice that the State might proceed on a theory of felony-murder.
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 gotten married and was known by the name Amy Gaulden. Because Detective Dunabro and Amy Gaulden...
The trial court did not err by allowing the State to amend a habitual impairing driving indictment that mistakenly alleged a seven-year look-back period (instead of the current ten-year look-back), where all of the prior convictions alleged in the indictment fell within the ten-year period. The...
Citing State v. Johnson, 9 N.C. App. 253 (1970), and noting in dicta that the granting of a motion to dismiss due to a material fatal variance between the indictment and the proof presented at trial does not preclude a retrial for the offense alleged on a proper indictment.
Even if there was a fatal variance between the indictment, which alleged that the defendant accomplished the strangulation by placing his hands on the victim’s neck, and the evidence at trial, the variance was immaterial because the allegation regarding the method of strangulation was surplusage...
Although a habitual felon indictment may be returned before, after, or simultaneously with a substantive felony indictment, it is improper where it is issued before the substantive felony even occurred.
Distinguishing McKoy (discussed immediately above), the court held that juvenile petitions alleging that the juvenile committed first-degree sexual offense were defective because they failed to name a victim. The petitions referenced the victim as “a child,” without alleging the victims...
Although a kidnapping indictment need not allege the felony intended, if it does, the State is bound by that allegation. Here, the indictment alleged confinement and restraint for the purpose of committing murder, but the evidence showed that the confinement or restraint was for the purpose of a...
An indictment charging felony child abuse by sexual act under G.S. 14-318.4(a2) is not required to allege the particular sexual act committed. Language in the indictment specifying the sexual act as anal intercourse was surplusage.
No fatal variance occurred when a juvenile petition alleged that the juvenile assaulted the victim with his hands and the evidence established that he touched her with an object.
Fatal variance in larceny indictment alleging that the stolen gun belonged to an individual named Minear and the evidence showing that it belonged to and was stolen from a home owned by an individual named Leggett. Minear had no special property interest in the gun even though the gun was kept...
Rape and sexual offense indictments were not fatally defective when they identified the victim solely by her initials, “RTB.” The defendant was not confused regarding the victim’s identity; because the victim testified at trial and identified herself in open court, the defendant was protected...
The trial court did not err by denying the defendant’s request to submit the lesser offense of assault on a female when the defendant was charged with rape using the statutory short form indictment. The defense to rape was consent. The defendant argued on appeal that the jury could have found...
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.
No fatal variance between the period of time alleged in the indictment and the evidence introduced at trial. The defendant was indicted on six counts of statutory rape: two counts each for the months of June, August, and September 2004. Assuming that the victim’s testimony was insufficient to...
No due process violation resulted from the delay between commission of the offenses (2000) and issuance of the indictments (2007). Although the department of social services possessed the incriminating photos and instituted an action to terminate parental rights in 2001, the department did not...