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.”
Tag Archives: charging documents
Is it proper to charge a defendant separately with a greater offense and with a lesser-included offense? For example, is it proper to charge a defendant with robbery and with larceny arising out of the same taking, even though larceny is a lesser-included offense of robbery? Continue reading →
Last week, the court of appeals decided State v. Allen, a case that holds that the pleading requirements that apply to indictments and other accusatory pleadings don’t necessarily apply to citations. The opinion is helpful to the State, but I think there’s a reasonable chance of further review. Continue reading →
I recently taught a class of law students about criminal pleadings. We discussed proper pleadings and defective pleadings, and the State’s ability to bring new charges against a defendant after a case is dismissed due to a fatal defect in the pleading. It was an interesting conversation, and it prompted me to look into the matter a bit more. This post summarizes the law. Continue reading →
How many charges can be placed on a single charging document, such as a citation, an arrest warrant, or an indictment? Old hands use the rule of thumb, no more than two charges per citation, no more than three charges in any other pleading. But where does that rule come from? And is it even correct? Continue reading →
Many veteran prosecutors know the rule, “plead in the conjunctive.” In other words, in an indictment or other charging document, join different theories of the crime with the word “and” instead of the word “or,” even when the statute defining the offense uses “or.” It’s an archaic rule, but it comes up often enough that I thought I’d discuss it here.
If there are multiple offenses, plead each one in a separate count. This post focuses on how to plead a single crime that can be committed multiple ways. But it’s important to remember at the outset that when the state is actually charging a defendant with multiple crimes, the offenses must be alleged in different counts. Under G.S. 15A-924(a)(2), a criminal pleading must contain “[a] separate count addressed to each offense charged.” And, under G.S. 15A-924(b), “[i]f any count . . . charges more than one offense, the defendant may by timely filing a motion require the State to elect and state a single offense alleged in the count upon which the State will proceed to trial. A count may be dismissed for duplicity if the State fails to make timely election.” The state may also amend the pleading to separate the offenses into separate counts. State v. Stephens, 188 N.C. App. 286, 292 (2008) (quoting State v. Rogers, 68 N.C. App. 358, 379 (1984)).
If there is a single offense that can be committed in several ways, charge the theories conjunctively in a single count, using “and” instead of “or,” even if the statute defining the offense uses “or.” For example, although G.S. 14-100, which defines the offense of obtaining property by false pretenses, encompasses “obtain[ing] or attempt[ing] to obtain” property, the best practice is to allege that the defendant did “obtain and attempt to obtain” property. State v. Armstead, 149 N.C. App. 652, 654-55 (2002). See also, e.g., State v. Swaney, 277 N.C. 602, 611-12 (1971) (armed robbery indictment properly alleged that the defendant “endangered and threatened” the life of the victim, though G.S. 14-87 requires only that the defendant “endangered or threatened” the victim’s life). The reason courts have given for this practice is that the use of the disjunctive term “or” may “leave it uncertain what is relied on as the accusation against [the defendant].” Swaney, 277 N.C. at 612.
Other jurisdictions agree. The rule that prosecutors should “plead in the conjunctive” is not unique to North Carolina practice. The United States Attorneys Manual advises that “[t]o avoid uncertainty in charging an offense in which the statute enumerates several different acts in the alternative, the practice is to plead the offense by substituting the conjunction ‘and’ for the disjunctive ‘or.’” Federal case law supports this recommendation. For example, the Fourth Circuit recently stated that “it is settled that a charging document must allege conjunctively the disjunctive components of an underlying statute.” United States v. Vann, 660 F.3d 771, 774 (4th Cir. 2011) (en banc). And this article written for Texas prosecutors provides essentially the same counsel.
Disjunctive charging is not necessarily improper. Although the preferred practice is to charge in the conjunctive, a pleading that charges in the disjunctive is not necessarily fatally defective. In State v. Haddock, 191 N.C. App. 474 (2008), the indictment charged the defendant with second-degree rape based on the theories that the victim was “mentally disabled, mentally incapacitated and/or physically helpless.” The court ruled that although the use of “and/or” was not the best practice, the indictment remained valid because it gave the defendant sufficient notice of the charges. The court also stated that both “and” and “or” are superior to “and/or.” See also State v. Jones, 242 N.C. 563 (1955) (warrant charging that the defendant did “build or install” a septic tank without a permit was not defective). In fact, as a leading commentator has observed, “[m]echanically turning ‘or’ to ‘and’ doesn’t actually provide any additional notice [to the defendant],” so the whole idea that it is better to charge in the conjunctive is likely “nonsensical.” Orin Kerr, The Strange Practice of Indicting in the Conjunctive, Volokh Conspiracy (Sept. 25, 2009).
There is no requirement that the state charge all possible ways of committing an offense. Finally, just because a statute sets out several ways to commit an offense doesn’t mean that the state must allege all those ways. For example, kidnapping is defined in G.S. 14-39 to include “unlawfully confin[ing], restrain[ing], or remov[ing]” another person, but if in a particular case there were no evidence of removal, the state could properly allege only that the defendant did “confine and restrain” the victim. Still, the pleading is not defective even if the state alleges all three terms. At the charging stage, the unsupported term “remove” would be harmless surplusage. State v. Armstead, 149 N.C. App. 652, 655 (2002) (false pretenses indictment alleging that the defendant used a pretense that was “calculated to deceive and did deceive” was not defective even though the state’s evidence showed that the victim was not deceived). By contrast, the submission of an unsupported theory of the offense to the jury is not harmless, but that’s a topic for another post.
A fatal defect in an indictment occurs when the indictment fails to allege an essential element of the crime charged. A fatal variance, by contrast, occurs when the facts brought out at trial don’t match up with those alleged in the indictment, and this difference occurs as to an essential element. Here are two illustrative examples.
Example 1: A larceny indictment alleges that the defendant “unlawfully, willfully, and feloniously did steal, take, and carry away a 14K gold wedding band, personal property, such property having a value of $1,075.”
In this example the larceny indictment is fatally defective because it fails to allege an essential element: The name of the person in lawful possession of the property. It doesn’t matter what the evidence at trial shows because the indictment can’t stand on its own two feet.
Example 2: A larceny indictment alleges that the defendant “unlawfully, willfully, and feloniously did steal, take, and carry away a 14K gold wedding band, the personal property of Jessica Smith, such property having a value of $1,075.” At trial the evidence shows that the wedding band was in fact the property of and in the possession of Joan Melville.
In this example, the indictment names the wrong person as having possession of the property. For this offense, that’s a fatal variance. Note that in this case the indictment is okay on its face (it doesn’t suffer from a fatal defect). The problem is that the evidence doesn’t match the allegation as to an essential element and thus there is a fatal variance.
Aside from application, there is another important distinction between these concepts. Specifically, fatal defect is jurisdictional and fatal variance is not. Because fatal defect is jurisdictional, it can be raised at any time—before trial, after trial, or any time after conviction, even when the sentence has been fully served. Fatal variance on the other hand is not jurisdictional. That means that if it’s not raised at trial, it’s waived. There are many cases on point, including a recent one from the court of appeals. In State v. Mason, __ N.C. App. __, __ S.E.2d __ (Aug. 7, 2012), the defendant was convicted of armed robbery. He asserted on appeal that there was a fatal variance between the indictment and the evidence with respect to the victim’s name. The court concluded that by failing to assert fatal variance in a motion to dismiss, the defendant failed to preserve the issue for appellate review.
What’s the take away for litigants? First, check the indictment before trial. This will help you identify fatal defects. For prosecutors, if you keep the charging language in mind as you prepare the case, it will also help you avoid a fatal variance. Second, for the defense, check the indictment after the State rests. If there’s a fatal variance, be sure to make a motion to dismiss on that basis, because, as the title of this post indicates, use it or lose it is the rule.
For more information about all of these issues, see my paper here.
I’m working on revising Arrest Warrant and Indictment Forms, a manual that provides charging language for several hundred common offenses. In the course of working on language for possession of stolen goods and receiving stolen goods, I noticed a couple of things that might be of interest.
First, there are two statutes that criminalize each offense. The principal larceny statute, G.S. 14-72, also criminalizes possession of stolen goods and receiving stolen goods, but there are also stand-alone statutes prohibiting receiving stolen goods, see G.S. 14-71, and possession of stolen goods, see G.S. 14-71.1. That’s an odd state of affairs, but the statutes appear to be consistent with one another, so it’s not problematic. If anyone knows why G.S. 14-71 and G.S. 14-71.1 were enacted, please post a comment or send me an email.
Second, the knowledge requirements for the offenses have an interesting wrinkle. Larceny is a felony in the circumstances set forth in G.S. 14-72(b) – when it is from the person, pursuant to a breaking or entering, and so on. Possession of stolen goods and receiving stolen goods are likewise felonies if the goods were stolen under one of those circumstances, but only if the defendant “kn[ew] or ha[d] reasonable grounds to believe” that the goods were stolen in that manner. G.S. 14-72(c). See also State v. Southards, 189 N.C. App. 152 (2008); N.C.P.I. – Crim. 216.45. So suppose that A pickpocket’s B’s cell phone, then gives the phone to C. If A tells C that A the phone is stolen, but not that A stole the phone from the person of B, C is guilty only of a misdemeanor.
Compare that to the other common circumstance in which larceny is a felony, which is when the value of the stolen items exceeds $1,000. G.S. 14-72(a). In that case, possession of stolen goods and receiving stolen goods are felonies regardless of whether the defendant knew of the factor that elevated the larceny to a felony, i.e., the value of the stolen items. G.S. 14-72(a); State v. Brown, 85 N.C. App. 583 (1987); N.C.P.I. – Crim. 216.40. So in the example above, if the cell phone happens to be a limited edition model signed by Paris Hilton and worth $5,000, C is guilty of a felony even if C fails to recognize the value of the phone.
As an aside relevant to this point, it looks to me as though N.C.P.I. – Crim. 216.41 and 216.49C, the pattern instructions for receiving and possessing goods stolen from a construction site, are incorrect. The statute requires that the defendant know, or have reasonable grounds to believe, that the goods were stolen from a construction site, see G.S. 14-72.6, while the pattern instruction omits that requirement.
Third – and most relevant to my writing project – it appears that the state must allege in the indictment or information the factor that elevates the possession or receiving offense to felony status. That’s the rule for larceny charges under State v. Wilson, 315 N.C. 157 (1985) (“An indictment charging felonious larceny must allege facts sufficient to raise the charge to the level of a felony.”). I couldn’t find a case directly on point with respect to possession and receiving – let me know if I’m missing one – but State v. Babb, 34 N.C. App. 336 (1977), holds that when goods are stolen pursuant to a felony other than felony larceny, an indictment for receiving stolen goods must allege that felony. It arguably follows that when goods are stolen pursuant to felony larceny, an indictment for possessing or receiving stolen goods must allege the specific variety of felony larceny at issue. But cf. State v. Harper, 51 N.C. App. 493 (1981) (offering the following intriguing comment without describing the indictment at issue: “Defendant was charged with feloniously possessing stolen property in violation of G.S. 14-71.1. The indictment could have supported proof either that defendant knew or had reason to know that the property was feloniously stolen pursuant to a breaking and entering, or otherwise by means described in G.S. 14-72(b), or that the property stolen was of a value in excess of $400.”). Anyone care to argue otherwise?
Third Update: The use of initials appears to be a floor below which a criminal pleading may not fall. In In re M.S., the court of appeals held that a juvenile petition that identified a sex offense victim only as “a child” was inadequate.
Second Update: The Court of Appeals has approved the use of initials in State v. McKoy, available here.
Update: I have learned of at least one North Carolina trial court order addressing this issue, and finding, in the circumstance of the particular case at hand, that it was not improper to identify the victim by initials. The order is here: Order re Using Initials in Charging Documents
Original Post: Magistrates and prosecutors sometimes want to use initials, rather than full names, to identify individuals other than the defendant in charging documents. For example, a magistrate preparing an arrest warrant for a sexual assault might want to identify the victim only by her initials, in order to preserve her privacy. Or, when a law enforcement officer has used an informant to purchase drugs from a defendant, the officer might ask the magistrate to identify the informant only by his initials, in order to protect him from retaliation and to preserve his usefulness as an informant. But is the use of initials proper?
The starting point in the analysis is G.S. 15A-924(a)(5), which requires pleadings to contain a factual statement that summarizes the charged offense with “sufficient precision clearly to apprise the defendant . . . of the conduct which is the subject of the accusation.” One might argue that, in most cases, the description of the offense plus the initials will be sufficient to give the defendant notice of the charge. If the defendant needs more information, he can move for a bill of particulars under G.S. 15A-925.
However, at least in the context of charges involving the sale of controlled substances, our appellate courts have held that indictments must allege the name of the purchaser, if it is known. See State v. Bennett, 280 N.C. 167 (1971); State v. Calvino, 179 N.C. App. 219 (2006). These cases don’t spell out what counts as alleging the purchaser’s “name,” i.e., whether it must include a first and last name, whether a street name or a nickname would suffice, or whether initials are sufficiently specific to count as a “name.” But if the purpose is to provide the defendant with detailed information about the facts supporting the charge, providing a complete first and last name that can be used to identify the purchaser is certainly the safest course in preparing charging documents.
I am not aware of a North Carolina case regarding the use of initials to identify the victim of a sexual assault. On the one hand, the statutory short form indictments for rape and sex offense described in G.S. 15-144.1 and 15-144.2 indicate that the indictments should name the victim. On the other hand, those statutes, like the cases referenced above, don’t say what counts as a “name,” and the victim’s privacy interest weighs in favor of allowing initials to be used. There is federal case law that generally supports this approach. See, e.g., United States v. Pliego, 2008 WL 371160 (D. Minn. Feb. 8, 2008) (unpublished) (approving indictment that used initials to protect the identity of a minor victim); United States v. Jones, 2007 WL 2071267 (N.D. Ga. July 19, 2007) (unpublished) (same); United States v. Wabo, 290 F.Supp.2d 486, 490 (D.N.J. 2003) (“In the instant case, the Superseding Indictment contains sufficient factual and legal information for the defense to prepare its case. Although the victims are identified by initials, it is not essential that an indictment identify victims by their given names.”). Furthermore, our appellate courts themselves regularly refer to sexual assault victims by their initials in the courts’ written opinions. See, e.g., State v. Summers, 177 N.C.App. 691 (2006) (“We will use the victim’s initials rather than her full name in order to protect her identity.”). Still, in light of Bennett and the statutory short-form language, using initials is still a risk — a calculated trade-off between protecting the victim’s privacy and taking the chance of having a conviction set aside on appeal.
Please enrich this post by leaving comments about local practices regarding the use of initials, other contexts in which this issue arises, and important cases not discussed above.