Within the Four Corners: Scouring Indictments for Missing Elements in State v. Jackson and State v. Coffey.

Two recent opinions from the Court of Appeals illustrate the remarkable controversy currently underway over the specificity required of indictments.  In State v. Coffey, No. COA22-883, 2024 WL 675881 (N.C. Ct. App. Feb. 20, 2024), our Court of Appeals ruled an indictment for felony obstruction of justice was facially defective for failure to allege an essential element of the offense: the purpose of hindering or impeding a judicial or official proceeding or investigation.  By contrast, in State v. Jackson, No. COA22-280, 2024 WL 925480 (N.C. Ct. App. Mar. 5, 2024), our Court of Appeals ruled an indictment for habitual misdemeanor assault was sufficient though it failed explicitly to allege an element: causing physical injury.  This post attempts to reconcile the divergent analytical approaches taken in Coffey and Jackson.

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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 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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State v. Calderon Refines Analysis of When Acts Support Multiple Counts of Indecent Liberties

A recent court of appeals case, State v. Calderon, ___ N.C. App. ___ (2023), sets forth a new test for determining whether multiple acts of touching a child during a single encounter can support multiple counts of indecent liberties.

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Speech Integral to Criminal Conduct

The First Amendment permits criminal punishment for speech only when it falls within an established exception. True threats, incitement to violence, obscenity, and fighting words are among the categories of speech falling outside the protections of the First Amendment (although the fighting words exception is arguably defunct as a practical matter, as I wrote here). Each category has narrow definitions and standards that must be met as a matter of constitutional law before criminal liability can be imposed. My former colleague Jonathan Holbrook has written about the incitement exception and the true threats exception before. I wanted to write about another First Amendment exception, one that is much broader than the rest—speech integral to criminal conduct. Read on for the details.

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Recent Legislation Outlaws Street Takeovers

Last month the General Assembly enacted new G.S. 20-141.10 criminalizing so-called street takeovers. S.L. 2023-97. A street takeover occurs when a person blocks or impedes traffic on a highway, street, or public vehicular area with a motor vehicle in order to perform a motor vehicle stunt, contest, or exhibition. The new statute, effective for offenses committed on or after December 1, 2023, makes it unlawful for a person to operate a motor vehicle in a street takeover or to participate in or coordinate such an event. S.L. 2023-97 further authorizes the seizure of a motor vehicle operated in violation of G.S. 20-141.10.

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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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Third Circuit Deems Federal Felon-in-Possession Law Unconstitutional

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.

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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.

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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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