Crimes and Elements Archives – Page 12 of 48

What’s the Crime When School Bathroom Graffiti Mentions a Bomb?

October 8, 2019August 14, 2019 Shea Denning

Author’s note: The opinion discussed below was withdrawn and replaced by In re D.W.L.B, ___ N.C. App. ___ (Sept. 17, 2019). The new opinion concludes, for the same reasons provided in the earlier opinion, that the petition failed to allege that the juvenile made a false report concerning mass violence. The new opinion omits the portion of the earlier opinion holding that the petition properly alleged a violation of graffiti vandalism, explaining that even though the petition alleged facts that could constitute the crime of graffiti vandalism, the petition did not put the juvenile on notice that he needed to defend against a graffiti vandalism charge.

An elementary school student writes “BOMB INCOMING” on the wall of the boys’ bathroom at school. The student does not, in fact, know of any plans to bomb the school and has made no such plans himself. Has the student committed a crime or an act of juvenile delinquency? If so what crime or crimes has he committed?

Populate the poll below with your answer or answers and keep reading for mine.

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Shooting an Officer the Bird

August 20, 2019August 12, 2019 Jeff Welty

Editor’s note: The opinion analyzed in this post was withdrawn shortly after publication and replaced with this opinion reaching the same outcome.

Last week, in State v. Ellis, __ N.C. App. __, __ S.E.2d __, 2019 WL 3559644 (N.C. Ct. App. Aug. 6, 2019), a divided panel of the court of appeals held that a trooper properly stopped a vehicle “after witnessing . . . a passenger in [the] vehicle . . . extend his middle finger in the trooper’s general direction.” The majority acknowledged that “there are a number of decisions from courts across the country [holding] that one cannot be held criminally liable for simply raising his middle finger at an officer.” Yet it ruled that the defendant’s conduct provided reasonable suspicion of criminal activity, namely, disorderly conduct. See generally G.S. 14-288.4(a)(2) (making it unlawful to make a gesture “intended and plainly likely to provoke violent retaliation”). Let’s take a closer look at Ellis.

Fundamental Principles of Statutory Self-Defense

August 6, 2019 John Rubin

The common law right to use defensive force in North Carolina rests on three fundamental principles: necessity, proportionality, and fault. Ordinarily, when a person uses defensive force, the force must be reasonably necessary to prevent harm; the force must be proportional to the threatened harm; and the person using defensive force must not be at fault in the conflict. See John Rubin, The Law of Self-Defense § 2.1(b), at 14–15 (UNC School of Government, 1996). North Carolina’s new statutes on defensive force continue to rely on these principles. As under the common law, the statutes do not always refer to these principles in describing the circumstances in which a person may use defensive force. But, as this post is intended to show, the basic principles of necessity, proportionality, and fault remain central to the statutory rights.

Drug Testing Equipment Isn’t Drug Paraphernalia Anymore

July 29, 2019 Jeff Welty

Effective immediately, there is a new exception to G.S. 90-113.22 (possession of drug paraphernalia) and G.S. 90-113.22A (possession of marijuana paraphernalia). Pursuant to S.L. 2019-159, it is “not unlawful” for a drug user to possess or use “testing equipment for identifying or analyzing the strength, effectiveness, or purity” of drugs, or for an “organization that promotes scientifically proven ways of mitigating health risks associated with drug use” to possess or distribute such equipment. Read on to find out what’s behind the change.

General Assembly Creates New Crime of Death by Distribution

July 18, 2019 Shea Denning

Back in 2017, I wrote about murder charges premised on the unlawful distribution of drugs and what the State must prove to establish a defendant’s guilt. One element the State must prove is malice.

This legislative session the General Assembly created two new crimes penalizing the distribution of certain drugs resulting in a person’s death: death by distribution and aggravated death by distribution. S.L. 2019-83 (H 474). A distinguishing feature of the new crimes is that they require no proof of malice.

Another Self-Defense Decision on a Troublesome Doctrine

July 3, 2019July 2, 2019 John Rubin

In State v. Harvey, ___ N.C. ___, ___ S.E.2d ___ (June 14, 2019), a five to one majority of the North Carolina Supreme Court affirmed the unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 500 (2018), holding that the trial judge properly refused to instruct the jury on perfect and imperfect self-defense in a homicide case. In so ruling, the majority in the Supreme Court and Court of Appeals relied on the “belief” doctrine created by our courts over the last 25 years. The opinions, four in all, show that our courts are continuing to wrestle with the implications of that doctrine.

Naming the Victim of a Sexual Assault

June 12, 2019 Shea Denning

Suppose the State is prosecuting a defendant for the sexual assault of a young child. Though the child has been identified by name in the arrest warrant and investigative reports provided to the defendant, the State would prefer not to name the victim in the indictment. May it refer to the victim in that document as “Victim #1”?

The Statutory Law of Self-Defense in North Carolina

June 4, 2019June 4, 2019 John Rubin

Several years ago (some might say that’s an understatement) I wrote The Law of Self-Defense in North Carolina, in which I looked at over 200 years’ worth of North Carolina court opinions on self-defense and related defenses, such as defense of others and defense of habitation. The book’s approach reflected that North Carolina was a common law state when it came to self-defense. The right to act in self-defense depended primarily on the authority of court decisions. The General Assembly’s adoption in 2011 of three defensive force statutes—G.S. 14-51.2, G.S. 14-51.3, and G.S. 14-51.4—changed that. An understanding of the law of self-defense in North Carolina now must begin with the statutory law of self-defense.

Hemp or Marijuana?

May 22, 2019May 21, 2019 Phil Dixon

Back in November of last year, I wrote about hemp and CBD laws here. I have been teaching quite a bit on the subject lately and wanted to follow up that post with an examination of how legal use of hemp products may affect marijuana prosecutions in North Carolina.

Rules 803(7) and 803(10): Absence of Records

May 14, 2019May 14, 2019 Jonathan Holbrook

Let’s start with a brainteaser:

If there are no North Carolina criminal appellate cases citing to Rules of Evidence 803(7) or 803(10), does that prove that the rules are never used?

If you know your rules of evidence, then you get it. (You’re probably not that amused… but you get it.) If you need a quick refresher on these two rules, or an explanation of why it would be surprising that there are virtually no criminal appellate cases mentioning either of them, read on.