Jessie’s Top Five Indictment Errors

An indictment defect is a boon for the defense and a disaster for the prosecution. Simply put an indictment is defective when it fails to allege an essential element of the crime. Because fatal defects are jurisdictional, they can be raised at any time—at trial, on appeal, or post-conviction—and can never be waived. A closely related problem is fatal variance. A fatal variance occurs when the evidence doesn’t match up with the allegations in the indictment. If a fatal variance occurs, the defendant gets a dismissal. A lot of these errors can be spotted with a careful look at the indictment up front. But what should you look for? Unfortunately this area is quite technical and there are a lot of issues that can trip you up. If you want a detailed analysis, check out my lengthy paper on the issue here. But if you’re looking for some quick tips, read on for my top five indictment errors.

#5. Failing to properly allege a deadly weapon assault. For a deadly weapon assault, the indictment either has to allege that the weapon was a deadly weapon (e.g., “a handgun, a deadly weapon”) or must allege facts demonstrating its deadly character (e.g., “a 3 foot long steel pipe weighing 10 pounds”). State v. Palmer, 293 N.C. 633, 634-44 (1977). If the indictment fails to do this, it can’t support a conviction for a deadly weapon assault.

#4. Failing to allege the buyer/recipient of a drug sale or delivery and/or getting the drug name wrong. Indictments alleging sale and delivery of a controlled substance must allege the name of the purchaser or recipient if known; if that person’s name is unknown, the indictment should allege that fact. See, e.g., State v. Bennett, 280 N.C. 167, 168-69 (1971). Also, the indictment must correctly identify the controlled substance at issue. See, e.g., State v. LePage, __ N.C. App. __, 693 S.E.2d 157 (2010) (indictments identifying the controlled substance as “BENZODIAZEPINES, which is included in Schedule IV of the North Carolina Controlled Substances Act[.]” were defective; Benzodiazepines is not listed in Schedule IV; additionally, benzodiazepine describes a category of drugs, some of which are listed in Schedule IV and some of which are not).

#3. Alleging too much. Not everything needs to be included in the indictment and there is a danger in alleging too much. In many instances, if the prosecution alleges facts that aren’t required, it may find itself bound by those allegations. Take for example, State v. Yarborough, 198 N.C. App. 22 (2009), holding that although a kidnapping indictment need not allege the felony intended, if it does, the State is bound by that allegation. State v. Clark, __ N.C. App. __, 702 S.E.2d 324 (2010), is similar; in that case the court held that although the State is not required to allege the felony or larceny intended in an indictment charging breaking or entering a vehicle, if it alleges a specific crime, the State will be bound by that allegation.

#2. In a kidnapping case, failing to allege the correct theory. Kidnapping indictments must allege that the defendant confined, restrained, or removed the victim. Many times the kidnapping indictment alleges one or two of these acts but fails to allege the conduct shown by the evidence. When this is the case, the judge may not instruct on theories not alleged in the indictment. See State v. Tucker, 317 N.C. 532, 536-40 (1986) (plain error to instruct on restraint when indictment alleged only removal); State v. Bell, 166 N.C. App. 261, 263-65 (2004) (trial court erred in instructing on restraint or removal when indictment alleged confinement and restraint but not removal); State v. Smith, 162 N.C. App. 46 (2004) (trial court erred in instructing the jury that it could find the defendant guilty of kidnapping if he unlawfully confined, restrained, or removed the victim when the indictment only alleged unlawful removal); State v. Dominie, 134 N.C. App. 445, 447 (1999) (when the indictment alleged only removal, trial judge improperly instructed that the jury could convict if the defendant confined, restrained, or removed the victim).

And the #1 indictment error . . .

In a larceny case, failing to allege or messing up the name of the possessor. For larceny and other crimes that interfere with the right of possession, the indictment must allege the person in lawful possession of the property. If it doesn’t do this, it is defective. See, e.g., State v. McNeil, __ N.C. App. __, 707 S.E.2d 674 (2011) (an indictment for felonious larceny that failed to allege ownership in the stolen handgun was fatally defective). Additionally, the allegation must make clear that the named possessor is either a natural person (e.g., Jessie Smith) or an entity capable of possessing property. See, e.g., State v. Patterson, 194 N.C. App. 608 (2009) (larceny indictment alleging victim’s name as “First Baptist Church of Robbinsville” was fatally defective because it did not indicate that the church was a legal entity capable of owning property). If the victim is a corporation, this requirement is satisfied by alleging the corporation’s full corporate name with a designation as to the entity’s corporate status (e.g., “Inc.”). If there is no short form for designating that the entity is capable of possessing property, the indictment should expressly state that the entity has that capability (e.g., “First Baptist Church of Robbinsville, an entity capable of possessing property”).

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6 comments on “Jessie’s Top Five Indictment Errors

  1. I was indicted on 4 chargeds,but all my indictments only state what the statute of the offense,nothing else. I mean it has only my name and the victim name in the indictment .But it do not state what I did to be have broken the law of south carolina. But they gave me 12yrs in prison from 1998 until 2008. How could they do that ? If you can help me understand please do . Thank you !!! I would like to go into details with you but I need to make sure you get this first so if you will reply. Thanks. This crime I was charged with was bogus and I am an innocent man looking for help to clear my name so my family and I can live in peace.

  2. i need to know if you are charged with a crime and post bail and then you are indicted do you have to post another bail at the time of indictment

  3. Jessie, thanks for the great work! Here is a procedural question for you. Assume a federal defendant was convicted or plead to a felony only to discover the Govt failed to charge an offense long after direct appeal and post conviction relief has come and gone. Would it be via a Rule 12 MTD the count for lack of jurisdiction or a Rule 52 to arrest judgment or what? That’s where I’m stuck. Thanks.


  4. Good Afternoon
    How are you today? When an indictment contains an error in the name of the accused is this an plain error or defective or reversible error? Thank You


  5. A young man was charged with committing a drug crime in one county when the arrest was in the same state but a different city. There was no reciprocation between the city. The city of arrest shows nothing in the police report for drugs only a traffic violation. It was later learned that the officer who identified himself for that city and county’s officer was actually DEA. He took the alleged package with him 40 plus miles to his county seat. The officers they refused to open the alleged packaged in the presence of the defendant and upon his insistence because they did not have a search warrant. The package was not opened, or initialed and photographed in the presence of the defendant.

    The charging instrument charged the defendant for committing the crime in the wrong county and city. The entire trial was based upon the wrong city and county and every witness stated the crime occurred in the incorrect city and county. When the issue of fatal variance was raised and in the absence of the jury, the judge researched and said it the charges would stand due to the theory of accountability. The judge then gave a pen to the prosecutor who wrote in the city and county where the arrest occurred. The jury returned and was never informed of the error and/or manual amendment. The young man was found guilty.

    The defense attorney did not argue venue, but jurisdiction. I believe territorial and persona jurisdictions. The original charge instruments do not even mention the city and county where the arrest actually occurred. Are there any previous cases that address this? Is this legal? It is saying you are in San Diego California and rob a bank, but they charge you for robbing the bank in San Francisco. Even if the trial is in any like court in the state, it is difficult at best to defend San Francisco charges when you were in San Diego and the prosecutor presented the entire case of you having committed the crime in San Francisco. Is this even legal? What would this be called? How would this be addressed?

  6. If someone is convicted of kidnapping and arm robbery and both indictments reflect the exact same language, and both charges came from one incident yet the indictment was presented before a grand jury in two separate months with neither month being enacted by legislature for a grand jury to convene… is this a error in the indictment and is this a jurisdiction issue?