Earlier this month, the Third Circuit, sitting en banc, found the federal felon-in-possession statute unconstitutional as applied. The decision was based on the new interpretive approach announced in New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). The Third Circuit’s ruling is a massive decision that seems virtually certain to be reviewed by the Supreme Court. Keep reading for more details.
Crimes and Elements
Convictions Vacated for “Technical” Pleading Defects
Two recent cases from the North Carolina appellate courts indicate that reports of the demise of technical pleading requirements may have been greatly exaggerated. I am responsible for at least one of those reports. Several years ago, I posted about State v. Brawley, 370 N.C. 626 (2018) (per curiam), in which the North Carolina Supreme Court affirmed a conviction based on an indictment charging the defendant with stealing shirts belonging to “Belk’s Department Stores, an entity capable of owning property,” even though “Belk’s Department Stores” was not the full legal name of the entity that suffered the loss. I noted then that Brawley was one in a series of recent state supreme court opinions rejecting claims that technical pleading defects deprived the trial court of jurisdiction over the offense. See also State v. Jones, 255 N.C. App. 364 (2017) (failure to allege every element in a citation was not a jurisdictional defect).
Yet, in recent months, the North Carolina Court of Appeals has issued two published opinions vacating convictions based on fatally defective indictments. The first was a rape conviction pursuant to an indictment that failed to allege the defendant knew the victim was physically helpless. State v. Singleton, 285 N.C. App. 630 (2022). The second was a conviction for possessing a firearm at a protest where the pleading failed to state that the offense occurred on public property. State v. Reavis, __ N.C. App. __, 882 S.E.2d 590 (2022). To be sure, each of these cases involves the failure to plead elements of the offense, which is distinguishable from the victim-naming requirements in Brawley and related cases. Nevertheless, each relies on the notion that defects in an indictment deprive the court of its power to adjudicate a case, even when the pleading is sufficient to pass constitutional muster. This post will discuss these cases and consider potential future developments.
The Title is Affeer’d: Larceny or False Pretenses?
The perpetrators in State v. White, No. COA22-369, 2023 WL 3471116 (N.C. Ct. App. May 16, 2023), wrongfully obtained merchandise from a Walmart by purchasing an $89 child’s car seat box which they had surreptitiously filled with nearly $10,000 worth of electronics. The defendant was convicted of larceny, conspiracy to commit larceny, and obtaining property by false pretenses, and appealed, arguing the trial court erred in allowing convictions for both larceny and false pretenses. The Court of Appeals disagreed, saying “the crimes of larceny and obtaining property by false pretenses are not mutually exclusive.” White, 2023 WL 3471116, at *5. Ultimately, it held that there was sufficient evidence to support both charges and that the trial court did not err by instructing on both. Id. This post examines the difference between larceny and false pretenses to determine when a defendant may be convicted of both offenses based on a single transaction.
New Misdemeanor Crime of Domestic Violence
Last month, the North Carolina General Assembly passed S.L. 2023-14 (S 20) which largely covers changes to abortion laws. Within this bill is also a newly defined “misdemeanor crime of domestic violence,” which takes effect for offenses committed on or after December 1, 2023. This post discusses the utility of the new offense and the implications that it may have on a defendant’s gun rights.
Is NC’s Disorderly Conduct at Schools Statute Unconstitutionally Vague?
I started wondering about that question after reading a recent decision by the Fourth Circuit Court of Appeals, Carolina Youth Action Project v. Wilson, 60 F.4th 770 (4th Cir. 2023) (summarized here). There, the court struck down two South Carolina state laws aimed in large part at regulating conduct and speech in and around schools. Those laws are similar to our version of disorderly conduct by disrupting schools. This post examines the holding of Carolina Youth Action Project and its potential implications for North Carolina law.
Guilty Knowledge and the Possession of Controlled Substances
When a defendant is charged with a crime involving the possession of a controlled substance, what kind of knowledge or intent must the prosecution show? Must the state prove that the defendant knew that he or she possessed the substance? That the defendant knew that the substance was legally controlled? That the defendant knew the particular identity of the substance? Given the proliferation of controlled substances and the fact that many cannot be distinguished without laboratory equipment, these are important questions.
What is the Difference Between Voluntary and Involuntary Manslaughter?
It is sometimes said that the distinction between voluntary manslaughter, a Class D felony, and involuntary manslaughter, a Class F felony, is a matter of intent. Involuntary manslaughter is frequently described an unintentional killing. That description fails, however, to fully distinguish the offenses since voluntary manslaughter also may be based on a death that the defendant did not intend.
Indeed, unlawfully killing another with the specific intent to do so is murder rather than either type of manslaughter. So what makes some unlawful but unintentional killings voluntary manslaughter and others involuntary manslaughter? It is the intent associated with the underlying act (such as the assault that proximately caused the victim’s death) as well as the nature of that act (was it a felony or inherently dangerous versus simply culpably negligent) that makes the difference.
Consent Upon a Sure Foundation
Is lack of consent an element of burglary? This post arises from a conversation I had with a colleague who asserted that the homeowner’s consent could legitimize an entry that would otherwise constitute a burglary. Insofar as a defendant might introduce evidence at trial to establish a lawful entry, that’s certainly correct. But does the State affirmatively have to allege and prove a lack of consent? One of the nine common law felonies, burglary was defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein. 4 Bl. *224. North Carolina statute divides the crime into degrees – it’s first-degree if the home is occupied – but otherwise retains the common law definition. N.C.G.S. § 14-51. Whatever the State might now have to prove at trial to obtain a conviction, the common law elements did not explicitly include a lack of consent. This post explores the issue of consent in our criminal law and attempts to determine how consent operates to prove or disprove a burglary.
Spring 2023 Update on the Constitutionality of Gun Laws
Last fall, I wrote a post about the litigation over the constitutionality of various firearms restrictions in the wake of New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). Recall that in Bruen, the Supreme Court announced a new interpretive approach for Second Amendment claims: courts must determine whether the challenged regulation is “consistent with the Nation’s historical tradition of firearm regulation.” Litigants have subsequently come forward with numerous challenges to gun laws, and courts have struggled with how to apply the new test. As detailed below, the Fifth Circuit recently issued a major federal appellate case decided under the Bruen framework, and we are awaiting another from the Third Circuit on an even more important issue.
Possession of Khat
Readers may have heard of the plant commonly known as khat or qat (or Catha edulis, for the botanically inclined). The plant is indigenous to Africa and is popular in parts of that continent, as well as parts of the Middle East, and is commonly and legally used in some of those places. When the plant is ingested, it acts as a stimulant. As with more familiar stimulants, users tend to experience mild feelings of alertness and euphoria in smaller doses; larger doses can induce delusional thinking, mania, paranoia, and heart problems (among other potential harmful effects). Users typically ingest the plant by chewing its leaves. Exotic though it may be, the plant occasionally finds its way into North Carolina. I have heard anecdotal reports of its presence in Durham, and this recent story from WRAL News noted that it was found in Johnston County as a part of an unrelated investigation. This post examines state law on possession and distribution of khat. Read on for the details.