The General Assembly has amended G.S. 14-190.5A, the “revenge porn” statute. The statute now (1) applies to live streams as well as recordings, and (2) is not limited to images captured in the course of a “personal relationship.” However, it still leaves open questions about various types of digitally-generated images. Continue reading
Category Archives: Crimes and Elements
Attention has fallen on North Carolina for a 1979 court decision on withdrawal of consent during sexual intercourse. In State v. Way, 297 N.C. 293 (1979), the state supreme court held under North Carolina’s then-existing rape statutes that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. The decision has drawn fierce criticism from the public and in legal circles. The criticism intensified after the General Assembly did not act on a bill introduced this session, Senate Bill 553, which would have permitted withdrawal of consent after intercourse begins consensually. People have asked me whether the apparent holding in Way is still the law in North Carolina. Is it true that a man would not be guilty of rape if he forcibly continued to have sexual intercourse with a woman after she withdrew consent? In my view, that may not be the law in North Carolina. Continue reading →
In North Carolina, the general rule is that “an attempt to commit a . . . felony is punishable under the next lower classification as the offense which the offender attempted to commit.” G.S. 14-2.5. However, the armed robbery statute, G.S. 14-87, makes it a class D felony to “take[] or attempt[] to take” property from another while in possession of a dangerous weapon. The specific terms of the statute therefore create an exception to the general rule, and render attempted armed robbery the same offense class as the completed crime. The fact that attempted armed robbery is specifically set out in the armed robbery statute and is the same offense class as armed robbery has created considerable doctrinal trouble. In the past month, the General Assembly has tried to fix the problems and the state supreme court has weighed in on an analogous issue. Continue reading →
Category: Crimes and Elements, Uncategorized | Tags: armed robbery, attempt, completed crime, lesser included offenses, mccoy
Jeff wrote on Monday about efforts by North Carolina government officials to combat the opioid epidemic.The initiatives he highlighted, such as addiction treatment and needle exchange programs, primarily attack the problem from a public health perspective. Jeff noted the contrast between this approach and the criminal-drug-law enforcement response to the spread of crack cocaine in the 1990s.
That’s not to say, however, that the criminal justice system isn’t responding to the current crisis. In counties across the State, including New Hanover, Onslow, Pender, Pitt, Union, and Wake, prosecutors are pursuing second-degree murder charges against defendants who are alleged to have provided the opioids leading to victims’ deaths.
This post explores the basis for murder charges based on the unlawful distribution of drugs and what the State must prove at trial to establish a defendant’s guilt.
Category: Crimes and Elements | Tags: Ludwig, malice, opioid, opioid epidemic, second degree murder, state v. parlee, state v. pritchard
An ancient maxim of the law is ignorantia juris non excusat, or ignorance of the law does not excuse. Put another way, it is presumed that the public knows the laws, and a defense of ignorance is typically not allowed. This principle is at the heart of the recent decision by the state supreme court in State v. Miller, ___ N.C. ___, (June 9, 2017). Continue reading →
Over two years ago I said I would someday try to sort North Carolina’s reportable sex crimes into the tiers set out in the federal Sex Offender Registration and Notification Act (SORNA). Today’s the day. Continue reading →
Category: Crimes and Elements, Uncategorized | Tags: petition to terminate registration, sex offender, sex offender registration, SORNA
Some offenses can be proved by alternative theories. For example, impaired driving occurs when a person drives while (1) while under the influence of an impairing substance, (2) after consuming a sufficient quantity of alcohol that the person has an alcohol concentration of 0.08 or more at any relevant time after the driving, or (3) with any amount of a Schedule I controlled substance or its metabolites in his or her blood or urine. See Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime (7th ed. 2012). The three options noted above constitute three separate theories upon which an impaired driving conviction can rest. Similarly, kidnapping occurs when a person (1) confines, (2) restrains, or (3) removes a person and other elements are satisfied. Id. The three options—confines, restrains, or removes—constitute three separate theories upon which a kidnapping conviction can rest. Sometimes alternative theories are bound up in the definition of an element of an offense. For example, first-degree sexual assault with a child requires, among other things, that the defendant engage in a “sexual act” with the victim. Id. The term sexual act is defined to include, in part, (1) cunnilingus, (2) analingus, (3) fellatio, and (4) anal intercourse. Id. These acts constitute separate theories that can support a sex offense conviction. Continue reading →
Category: Crimes and Elements, Procedure, Uncategorized | Tags: fowler, jury instructions, martinez, theories
Under G.S. 14-208.16, a registered sex offender may not reside “within 1,000 feet of the property on which any public or nonpublic school or child care center is located.” What’s the right way to measure those 1,000 feet? As the crow flies? Property line to property line? Building to building? Continue reading →
Category: Crimes and Elements, Uncategorized | Tags: 1000 foot rule, residency restrictions, sex offender
When a group of confederates undertake to commit a series of criminal acts, is there one conspiracy or multiple conspiracies? The case of State v. Glisson, ___ N.C. App. ___, 796 S.E.2d 124, (Feb. 7, 2017), dealt with that issue. The answer, it turns out, is fact-specific and less than crystal clear. Continue reading →
Category: Crimes and Elements, Uncategorized | Tags: conspiracy, multiple conspiracies, State v. Glisson, State v. Rozier
I was teaching a class about charging documents recently when the conversation turned to the rule that a charge of resisting, delaying, or obstructing a public officer in violation of G.S. 14-223 must describe the particular duty that the officer was discharging at the time of the resistance. A member of the class asked whether it would suffice to describe the duty as “protecting and serving.” I gave my best guess about the answer but I thought I would see how others react to the question. So take the poll below, then read the rest of the post for a little history about the rule, a summary of a recent case, and a discussion of authority about the sufficiency of a general description like “protecting and serving.”
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Category: Crimes and Elements, Procedure, Uncategorized | Tags: charging documents, RDO, Resist delay obstruct, resisting