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.
Consent Upon a Sure Foundation
A non-lawyer might be forgiven for being somewhat confused by the rules governing indictments. The basics are summarized easily enough: a trial court’s jurisdiction depends on a facially valid indictment; an indictment is facially valid so long as it sufficiently alleges all the essential elements of the offense; and the essential elements consist of what the State must prove in order to obtain a conviction. But these basics are so pocked with exceptions, so piled with caveats, that few cases are resolved by reference to them alone. Our appellate courts have decided a few cases in the last several months which illustrate this complexity. This post attempts to provide a brief recurrence to fundamental principles applicable to indictments and to throw a lifeline to prosecutors who discover a potential defect during a trial. My colleagues have blogged pretty frequently about indictment issues, most recently Shea Denning addressing a recent opinion here. Continue reading →
In State v. McLymore, 380 N.C. 185, 868 S.E.2d 67 (2022), our Supreme Court held that Section 14‑51.3 “supplants the common law on all aspects of the law of self-defense addressed by its provisions,” and “the only right to perfect self-defense available in North Carolina [is] the right provided by statute.” Id. at 191, 868 S.E.2d at 72-73. At the same time, it interpreted the felony disqualifier provision of Section 14-51.4 – consistently with “common law principles” – to require a causal nexus between the felony and the use of force. Id. at 197, 868 S.E.2d at 77. The common law is apparently not so easily dispensed with. This post – my first contribution to this forum – addresses the persistence of the common law in the area of self-defense. My colleague Phil Dixon provided color commentary on McLymore here. My colleague John Rubin discussed the felony disqualifier provision (and anticipated the holding in McLymore) here. Continue reading →