Aggregating Value: A Prosecutor’s Guide to the New G.S. 15A-1340.16F

A new statute, effective next month (March 1, 2024), will give prosecutors greater power to combine the value of stolen property to justify a harsher sentence for certain financial crimes.  S.L. 2023-151, § 2(a).  Section 15A-1340.16F provides that if a person is convicted of two or more of the same financial crimes – embezzlement, false pretenses, or elder exploitation – the crimes may be “aggregated for sentencing” if: (1) the crimes were committed against more than one victim or in more than one county, and (2) the crimes were based on the same act or transaction or series thereof connected together or constituting parts of a common scheme or plan.  The statute lays out a comprehensive arrangement for pleading, procedure, and punishment.  This post explores the new law.

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The Surest Point of All the Law: Evolving Standards in State v. Lancaster

Reminiscent of the Wars of the Roses, our Supreme Court’s recent opinion in State v. Lancaster, __ N.C. __, 895 S.E.2d 337 (2023), concerns an offense first codified in 1328 during the reign of Edward III.  The common law crime of going armed to the terror of the public, our Supreme Court there held, does not require allegation or proof that the conduct occurred on a public highway; hence, there was no facial defect in an indictment omitting this putative element.  Other elements not explicitly stated in the same indictment – for the purpose of terrifying, in a manner that would naturally terrify – were “clearly inferable.”  This post examines Lancaster to ascertain the direction of our Supreme Court’s avowed retreat from archaic pleading requirements.

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Is Rule 608(b) a Rule of Exclusion?

In State v. Hamilton, No. COA22-847 (N.C. Ct. App. Nov. 21, 2023), the Court of Appeals held the prosecutor’s cross-examination of the defendant about statements he made in open court “was an inappropriate form of impeachment.”  Slip Op. p. 13.  In support of this conclusion, the Court of Appeals cited, among other things, Evidence Rule 608(b).  That rule generally bars evidence of specific instances of a witness’s conduct for the purpose of attacking or supporting his credibility; however, specific instances of conduct may be inquired into on cross-examination if probative of truthfulness or untruthfulness.  N.C.G.S. § 8C-1, Rule 608 cmt.  This post examines the use of Rule 608(b) in Hamilton to determine how a prosecutor can avoid improper impeachment.

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Questions of Law: Untangling Admissibility in State v. Gibbs.

Is fentanyl an opiate?  That’s the question the prosecutor asked a witness in State v Gibbs.  The trial court overruled the defendant’s objection, and the witness was permitted to testify that fentanyl was both an opioid and an opiate.  In an unpublished opinion (“Gibbs I”), the Court of Appeals ruled this was error, reversing a conviction for trafficking by possession.  Our Supreme Court then reversed the Court of Appeals.  In a concise, per curiam opinion, our Supreme Court declared that whether fentanyl is an opiate is a question of law, and it remanded for reconsideration.  In a subsequent unpublished opinion (“Gibbs II”), the Court of Appeals determined that fentanyl is an opiate as a matter of law.  Reasoning that there was no need for an expert witness to testify on the issue, the Court of Appeals concluded that there was no error in the defendant’s conviction for trafficking.  Of course, whether such testimony is necessary does not resolve whether this particular evidence was admissibleGibbs is an evidence case, but the rule it illustrates is elusive.  This post examines Gibbs to ascertain whether the prosecutor asked a permissible question.

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Is Force an Element of Forcible Rape?

The answer would seem to be obvious.  A person is guilty of forcible rape if the person engages in vaginal intercourse with another person by force and against the will of the other person.  N.C.G.S. §§ 14-27.21 (first-degree); 14-27.22 (second-degree).  Our Supreme Court has, at least once, found insufficient evidence of “the element of force” and reversed a rape conviction on that basis.  See State v. Alston, 310 N.C. 399, 408, 312 S.E.2d 470, 476 (1984).  Our Supreme Court recently held, however, that a juvenile petition for sexual battery was not defective for failure to allege force.  “[O]ne cannot engage in nonconsensual sexual contact,” the Court said, “without the application of some ‘force,’ however slight.”  In the Matter of J.U., 384 N.C. 618, 625, 887 S.E.2d 859, 864 (2023).  The requisite force, in other words, is inherent in the act.  The significance of that holding transcends its context: juvenile petitions are held to the same standards as indictments, which generally must allege all the elements, and misdemeanor sexual battery is statutorily defined using the same terms as forcible rape.  This post examines the element of force in cases of rape.

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Case Summary — State v. Richardson, No. 272A14 (N.C. Sept. 1, 2023).

Presented with an appalling set of facts, the North Carolina Supreme Court unanimously upheld the defendant’s convictions for murder, kidnapping, sex offense, and felony child abuse.  The majority affirmed a sentence of death.  Justice Berger’s concurring opinion, addressing only a Miranda issue, was joined by four other justices, making it “the supplemental opinion of the Court.”  Justice Earls dissented with regard to capital punishment, concluding the defendant was entitled to a new sentencing hearing.  This post summarizes the 225-page opinion in Richardson.

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The Criminal Night: trespassing in space and time

I recently participated in a webinar with my colleagues Chris McLaughlin and Kirk Boone about the right of tax appraisers to enter private property.  The webinar is available for purchase here.  Professor McLaughlin has blogged about the issue before, and he has written again following our discussion.  This post encapsulates what I learned in preparation for that webinar.  It summarizes the laws governing criminal trespassing in North Carolina, glancing briefly back to their antecedents in the common law and looking ahead to recent statutory changes.

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Case Summaries – U.S. Supreme Court (June 23 & 27, 2023)

In her concurring opinion in Samia v. United States, No. 22-196, 2023 WL 4139001 (U.S. June 23, 2023), Justice Barrett makes a startling admission: “[W]hy not simply say that the history is inconclusive?”  Justice Barrett, remember, clerked for Justice Scalia, author of the watershed confrontation clause case, Crawford v. Washington, 541 U.S. 36 (2004), which relied heavily upon a historical analysis.  See id. at 43 (“We must … turn to the historical background of the Clause to understand its meaning.”).  In reciting this history, making it central to interpretation of the Sixth Amendment, Scalia rejected the view that the framers’ intent cannot be recovered from the remaining sources.  Cf. California v. Green, 399 U.S. 149, 174 (1970) (Harlan, J., concurring) (“History seems to give us very little insight into the intended scope of the Sixth Amendment Confrontation Clause.”).  Indeed, Justice Thomas, writing for the majority in Samia, likewise makes “historical practice” a pillar of the Court’s analysis, albeit a history Justice Barrett finds disposable.  Samia, 2023 WL 4139001, at *6.  This post summarizes opinions issued by the United States Supreme Court on June 23, 2023 (Samia v. United States) and June 27, 2023 (Counterman v. Colorado).  These summaries, written by Joseph L. Hyde and Brittany Bromell, respectively, will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.

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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.

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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.

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