What’s In a Name?

In a post here, I listed my top five indictment errors. The number one error was misstating the victim’s name in an indictment charging larceny or a related crime interfering with the right of possession. In that context the problem typically involves failing to allege the victim as a natural person or an entity capable of owning property. Problems regarding allegations as to the victim’s name, however, come up in other contexts as well.

With respect alleging the victim’s name, several general rules apply:

(1) a charging document must name the victim;

(2) a fatal variance results when an indictment incorrectly states the victim’s name; and

(3) it is error to allow the State to amend an indictment to change the victim’s name.

With respect to rule (1)—naming the victim—in certain circumstances, initials may be used. For example, in State v. McKoy, 196 N.C. App. 650 (2009), the court held that rape and sexual offense indictments were not fatally defective when they identified the victim by her initials, “RTB.” The court concluded that the defendant was not confused regarding the victim’s identity and because the victim testified at trial and identified herself in open court, the defendant was protected from double jeopardy. But see In re M.S., 199 N.C. App. 260 (2009) (distinguishing McKoy and holding that juvenile petitions alleging first-degree sexual offense against “a child” were defective).

Notwithstanding rules (2) and (3) above, the appellate courts find no fatal defect or variance or bar to amendment when a name error falls within the doctrine of idem sonans. Under this doctrine, a variance is not material if the names sound the same. Other cases hold that the name errors are immaterial if they are typographical or did not mislead the defendant. The cases summarized below illustrate these exceptions. Note that when these cases are compared to those often cited in support of the general rules, some inconsistency appears.

State v. Williams, 269 N.C. 376, 384 (1967) (indictment alleged victim’s first name as “Mateleane” but trial evidence indicated it was “Madeleine”; the variance came within the rule of idem sonans).

State v. Gibson, 221 N.C. 252, 254 (1942) (variance between victim’s name as alleged in indictment—“Robinson”—and victim’s real name—“Rolison”—came within the rule of idem sonans).

State v. Hewson, 182 N.C. App. 196, 211 (2007) (no error in allowing the State to amend a murder and shooting into occupied dwelling indictment to change victim’s name from “Gail Hewson Tice” to “Gail Tice Hewson”).

State v. Holliman, 155 N.C. App. 120, 125-27 (2002) (no error to allow the State to change name of murder victim from “Tamika” to “Tanika”).

State v. McNair, 146 N.C. App. 674, 677-78 (2001) (no error by allowing amendment to change victim’s name from Donald Dale Cook to Ronald Dale Cook; victim’s correct name appeared twice in one of the two challenged indictments).

State v. Wilson, 135 N.C. App. 504, 508 (1999) (no fatal variance between indictment that alleged assault victim’s name as “Peter M. Thompson” and the trial evidence that his name was “Peter Thomas”; arrest warrant correctly named victim, defendant was aware of who the victim was, and the names fall within the doctrine of idem sonans).

State v. Bailey, 97 N.C. App 472, 475-76 (1990) (no error in allowing the State to amend victim’s name in three indictments from “Pettress Cebron” to “Cebron Pettress”).

State v. Marshall, 92 N.C. App. 398, 401-02 (1988) (no error to allow amendment of rape indictment to change victim’s name from Regina Lapish to Regina Lapish Foster; defendant was indicted for four crimes, three indictments correctly alleged the victim’s name, and only one omitted her last name).

State v. Isom, 65 N.C. App. 223, 226 (1983) (no fatal variance between indictments naming victim as Eldred Allison and proof at trial; although victim testified at trial that his name was “Elton Allison,” his identification indicated his name was Eldred and the defendant referred to the victim as Elred Allison; the names Eldred, Elred, and Elton fall within the doctrine of indem sonans).

The courts have recognized other exceptions to the general rules. For example, they have held that variances aren’t fatal and amendments are permissible when the victim’s name legally changes. State v. Bowen, 139 N.C. App. 18, 27 (2000) (trial court did not err by allowing the State to change the victim’s last name in a sex crimes indictment to properly reflect a name change that occurred because of an adoption subsequent to when the indictment was issued; State v. Johnson, __ N.C. App. __, 690 S.E.2d 707 (2010) (no fatal variance where an indictment charging sale and delivery of a controlled substance alleged a sale to “Detective Dunabro;” the evidence at trial showed that the detective had married and was known as Amy Gaulden; because Detective Dunabro and Amy Gaulden were the same person, known by both a married and maiden name, the indictment sufficiently identified the purchaser; the court noted that “[w]here different names are alleged to relate to the same person, the question is one of identity and is exclusively for the jury to decide”). Also State v. Sisk, 123 N.C. App. 361, 366 (1996), aff’d in part, 345 N.C. 749 (1997), held that the State could amend an uttering a forged instrument indictment, changing the name of the party defrauded from First Union National Bank to Wachovia Bank. Sisk reasoned that the bank’s name did not speak to the essential elements of the offense charged and that the defendant did not rely on the identity of the bank in framing her defense. Additionally, State v. Ingram, 160 N.C. App. 224, 226 (2003), aff’d, 358 N.C. 147 (2004), held that it was not error to allow the State to amend a robbery indictment by deleting the name of one of two victims alleged.

And finally (because I’m feeling very “professory” today), top honors to the first person who can cite the source of the title to this post.