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., 12/04/2021
E.g., 12/04/2021

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...

On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App.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...

State v. Brawley, 370 N.C. 626 (Apr. 6, 2018)

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...

State v. Brice, 370 N.C. 244 (Nov. 3, 2017)

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...

State v. Carter, 370 N.C. 266 (Nov. 3, 2017)

On discretionary review from a unanimous unpublished decision of the Court of Appeals vacating a conviction for carrying a concealed gun on grounds that the indictment was fatally defective, the court reversed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...

State v. Ellis, 368 N.C. 342 (Sept. 25, 2015)

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...

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...

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...

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...

State v. Forte, ___ N.C. App. ___, 817 S.E.2d 764 (July 3, 2018) review granted, 371 N.C. 779 (Dec 5 2018)

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...

(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...

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 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...

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 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...

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...

State v. Spivey, 240 N.C. App. 264 (Apr. 7, 2015) rev’d on other grounds, 368 N.C. 739 (Mar 18 2016)

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.”

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 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...

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...

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.

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.

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.

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...

State v. Avent, 222 N.C. App. 147 (Aug. 7, 2012)

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...

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...

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.

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....

Sentencing factors that might lead to an aggravated sentence need not be alleged in the indictment.

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...

In Re A.W., 209 N.C. App. 596 (Feb. 15, 2011)

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...

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...

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 (...

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...

Short-form murder indictment put the defendant on notice that the State might proceed on a theory of felony-murder.

In Re M.S., 199 N.C. App. 260 (Aug. 18, 2009)

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...

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...

State v. Hueto, 195 N.C. App. 67 (Jan. 20, 2009)

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...

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