Author’s Note: The Court of Appeals withdrew the State v. Watlington decision—on which this post is partially based—on April 7, 2025 and reissued the decision on April 16, 2025. The relevant section of this post has been modified from its original.
It has long been held that the allowable unit of prosecution for an offense is within the discretion of the legislature. See, e.g., Bell v. United States, 349 U.S. 81 (1955). When the legislature does not clearly express legislative intent, the court must determine the allowable unit of prosecution. State v. Smith, 323 N.C. 439 (1988).
North Carolina courts have resolved issues related to units of prosecution in some contexts—including kidnapping, possession of firearms, and theft crimes—while there are questions that remain unanswered in other contexts. Some answers are clearer and more direct than others. I previously wrote a bulletin reviewing case law on permissible units of prosecution for certain offenses against the person, possession offenses, and theft offenses. Since then, the courts have specified units of prosecution for a few more offenses. This post provides more insight into those offenses and reviews the rule of lenity in navigating the unresolved.
New Developments
Recently, there have been two cases that have covered allowable units of prosecution for specific offenses. One is State v. Lancaster, 908 S.E.2d 879 (2024), on criminal contempt under G.S. 5A-11. The other is State v. Watlington, ___ S.E.2d ___ (2025) on hit and run under G.S. 20-166 and accessory after the fact under G.S. 14-7.
Criminal contempt
The defendant in Lancaster, dissatisfied with the outcome of his proceedings before the trial judge, used profanity to address the court. The trial court found him in contempt, at which point defendant again used profanity, leading to a second finding of contempt.
On appeal, defendant contended that the trial court erred by adjudging him in contempt of court on two separate counts, arguing that his repeated use of profanity within a short period of time could reasonably be interpreted as one episode of contempt. The court of appeals disagreed, noting that G.S. 5A-11(a) was not ambiguous about what constituted “behavior” for an episode of contempt. Instead, the court concluded that each of the defendant’s outbursts were separate episodes of behavior delineated by separate adjudications of contempt under G.S. 5A-11(a).”
While the court of appeals found no error on this set of facts, it is unclear whether the court would reach the same conclusion under circumstances in which multiple outbursts occur prior to any adjudication of contempt. It could be argued that had the defendant used profanity twice before the trial court’s first contempt ruling, those outbursts would constitute only one instance of behavior for purposes of the criminal contempt statute. Courts in other jurisdictions have ruled on similar facts, reaching different results. For example, the Court of Appeals of Indiana vacated a second finding of contempt, concluding that the defendant’s behavior occurred within a single proceeding, lasted a relatively short period of time, and was not interrupted by another proceeding. Mockbee v. State, 80 N.E.3d 917, 922 (Ind. Ct. App. 2017). The defendant engaged in disruptive behavior several times before the first finding of contempt. The court noted that even though the defendant continued to behave in a contemptuous manner after the initial contempt citation, his continuing behavior was in response to the trial court’s initial contempt citation and flowed from the same criminal objective.
On the other hand, the Court of Appeals of Maryland upheld three convictions of contempt where the behavior resulting in contempt findings were “separated by several minutes of relatively ordinary courtroom dialogue.” Smith v. State, 382 Md. 329 (2004). The court found multiple instances of contempt where the behavior was separated by periods of non-contemptuous behavior.
Hit and run
In an older, unpublished case State v. Cash, 234 N.C. App. 116 (2014), the court of appeals affirmed a defendant’s conviction for two counts of hit and run causing injury based on the defendant leaving the scene of a single crash. The defendant did not argue on appeal that multiple convictions based on a single act of leaving were improper, however, so the court did not analyze the issue.
The court of appeals has now resolved the issue in Watlington, which my colleague Belal Elrahal covered extensively in yesterday’s post. In case you missed it, the case involves two defendants, Watlington and Felton, who were tried jointly. Watlington was convicted of first-degree murder and additional felonies related to her attempts to run over multiple people at a gas station after a fight. Felton was convicted of eleven counts of accessory after the fact to Watlington’s convictions.
Regarding the hit and run convictions, the court of appeals held that the unit of prosecution is the number of crashes from which the defendant fled as opposed to the number of victims injured as a result of the crash. Consequently, Watlington could only be convicted twice, and the court arrested judgment on the other three hit and run convictions. [Note: The unit of prosecution was previously described as “leaving the scene of a crash” and is now described as “the number of crashes from which the defendant fled.”]
Accessory after the fact
Felton argued that she should not be subject to multiple convictions for accessory after the fact to the felonies committed by Watlington. The court rejected this, explaining “the context of G.S. 14-7 clearly indicates that the legislature intended the allowable unit of prosecution to be each felony for which the principal committed and the accessory assisted after the fact.” The court noted that the accessory after the fact statute sets forth different punishments for the offense based on the severity of the underlying felony committed by the principal (“two classes lower than the felony the principal felon committed…”), further demonstrating the legislature’s intent.
Statutory Construction and Rule of Lenity
Some statutes are clear in defining the allowable unit of prosecution for the offense. For example, the human trafficking statute G.S. 14-43.11(c) specifies that each violation of the statute constitutes a separate offense. Consequently, the North Carolina Supreme Court held as recently as last year in State v. Applewhite, 386 N.C. 431 (2024), that each distinct act of recruiting, enticing, harboring, transporting, providing or obtaining a victim can be separately prosecuted. The same language can be found in the new money laundering statute (G.S. 14-118.8) that went into effect on December 1, 2024 (which my colleague Joe Hyde blogged about here). This suggests that each act (e.g. acquisition, possession, use, transfer, etc.) committed in furtherance of the offense can be prosecuted separately.
Units of prosecution for most offenses are not clearly defined, and many have yet to be resolved by case law. For statutory offenses that do not explicitly address the allowable unit of prosecution for that offense, the courts have utilized general principles of statutory construction. When rules of statutory construction do not aid in a resolution, “any ambiguity should be resolved in favor of lenity,” meaning “doubt will be resolved against turning a single transaction into multiple offenses.” State v. Smith, 323 N.C. 439 (1988). In other words, “the presumption is against multiple punishments in the absence of a contrary legislative intent.”