Crimes and Elements

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Is It Disorderly Conduct? And How Should the School Respond?

Author’s note: The North Carolina Supreme Court reversed the decision of the court of appeals discussed below as to the adjudication for disorderly conduct. In re T.T.E., ___ N.C. ___, 831 S.E.2d 293 (2019). The state supreme court concluded that substantial evidence established that the juvenile perpetrated an “’annoying, disturbing, or alarming act … exceeding the bounds of social toleration normal for’” the high school during the course of the instructional day through a public disturbance by “’engaging in violent conduct’” by “’throwing a chair toward another student in the school’s cafeteria.’” 

A high school student throws a chair in the cafeteria. The chair doesn’t hit anyone; indeed, no one is in the immediate vicinity of the chair. The student runs out of the cafeteria. Has the student committed a crime? If so, how should school officials respond?

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Expanded Forgiveness of a Criminal Conviction

Earlier this year, I had the opportunity to participate in a national roundtable, sponsored by the American Law Institute and National Conference of State Legislatures, on current and possible approaches to relieving the consequences of a criminal conviction. We considered three basic approaches: “forgetting” convictions by expunging them or limiting access to information about them; “forgiving” convictions through, among other things, certificates of relief, also known as certificates of rehabilitation; and “forgoing” convictions by diverting matters before conviction or decriminalizing them altogether. In its recently-completed legislative session, the North Carolina General Assembly expanded the forgiveness approach by making it easier to get a certificate of relief. Read on for more about this relatively new relief mechanism. If you’re interested in approaches elsewhere, the papers submitted by the various scholars and practitioners invited to the roundtable were recently published in the Federal Sentencing Reporter, available here. You can read my paper about North Carolina here.

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Got Probable Cause for Impaired Driving?

Two recent North Carolina Court of Appeals opinions help delineate when an officer has probable cause to believe a driver is driving while impaired. In each case, the court of appeals reversed the trial court’s determination that the officer lacked probable cause.

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Does a No Contact Order Apply While the Defendant Is in Jail?

When setting conditions of pretrial release in domestic violence cases, magistrates and judges often order a defendant not to contact the victim. Those directives clearly apply to a defendant once he is released from jail subject to those conditions. But what about a defendant who remains in jail? Is he also subject to a no contact condition included on a release order? The court of appeals addressed that issue yesterday in State v. Mitchell.

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Some Clarity on Self-Defense and Unintended Injuries

Earlier this year, in State v. Gomola, ___ N.C. App. ___, 810 S.E.2d 797 (Feb. 6, 2018), the Court of Appeals addressed a self-defense issue that has sometimes puzzled the North Carolina courts. The question in Gomola was whether a person can rely on self-defense to a charge of involuntary manslaughter. The Court answered with a decisive yes . . . if the basis for the involuntary manslaughter charge is an unlawful act such as an assault or affray.

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Brawley, Belk’s, and Charging Crimes in Modern, Southern Style

Belk Department Stores are the Bloomingdales of North Carolina. If someone says they are going to Belk (or, more often, “Belk’s”), you know that they are heading into town to pick up some modern, southern style (or, more likely, something off the wedding registry). And if you hear that so-and-so stole something from your local Belk’s, you can generally picture the scene of crime, since, outside of the big cities, there is generally just one Belk’s in town. So when the court of appeals held last year that a Rowan County indictment alleging that the defendant stole shirts belonging to “Belk’s Department Stores, an entity capable of owning property,” was invalid because it failed to adequately identify the victim of the larceny, it may have left some people in Salisbury (where there is only one Belk’s) scratching their heads.

The state supreme court recently reversed that determination in a per curiam opinion that rejected this kind of technical pleading requirement for larceny of personal property.

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A Lose-Lose Situation for “Felonious” Defendants Who Act in Self-Defense

I previously wrote here about the statutory felony disqualification for self-defense in North Carolina, adopted in 2011 by the General Assembly alongside expanded castle protections and clearer stand-your-ground rights for law-abiding citizens. The felony disqualification, in G.S. 14-51.4, states that a person loses the right of self-defense if he or she “[w]as attempting to commit, committing, or escaping after the commission of a felony.” A literal interpretation of the provision places “felonious” defendants in a lose-lose situation: if they defend themselves, they can be prosecuted for their use of force even if the force is otherwise permissible; if they don’t defend themselves, they could suffer injury or even death. In my earlier blog post, I suggested that the felony disqualification may include a “nexus” requirement—that is, that the disqualification applies only if the defendant’s felony in some way creates or contributes to the assault on the defendant and the resulting need for the defendant’s use of force. The Court of Appeals in the recent case of State v. Crump took a literal approach, appearing to make the felony disqualification an absolute bar to self-defense if the defendant contemporaneously engages in a felony.

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Updated Criminal Defender Manual Chapters

Over the past several months, the Indigent Defense Education group at the School of Government has been working on updating and expanding its free resources for indigent defenders. On our Indigent Defense Manuals website, you can find new editions of the Immigration Consequences Manual and Juvenile Defender Manual as well as the first installment (on motions practice) of a new Practice Guide Series. Also now available are an updated Expunction Guide and a new edition of a general reference for judges and attorneys on Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings (prepared by our colleagues Sara DePasquale and Jan Simmons with support from the Administrative Office of the Courts Court Improvement Program). For our two-volume criminal defender manual, we’re taking a slightly different approach and are posting chapters as we complete them. The first ones—on Personal Rights of the Defendant and Duties of the Presiding Judge—are hot off the computer and ready for use. In the next several months, we will be posting several more updated chapters in both Volume 1 on pretrial procedure and Volume 2 on trial procedure.

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Determining Probable Cause for Drug Crimes without Field Tests

Some law enforcement agencies concerned about officers’ exposure to fentanyl have stopped field testing white powders. A question I’ve had several times is whether a magistrate may find probable cause for a drug offense involving a white powder without a field test. The answer to that question is yes, so long as the totality of the circumstances provides reason to believe that the powder in question is a controlled substance.

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