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.
Joseph L. Hyde
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.
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.
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.
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.
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.
So Your Indictment May Be Flawed: What Now?
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.
The Common Law is Dead; Long Live the Common Law!
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.