Shortly before Christmas, the state supreme court decided a littering case captioned State v. Rankin, __ N.C. __, __ S.E.2d __, 2018 WL 6714931 (Dec. 21, 2018). The majority ruled that because the indictment “failed to . . . allege all . . . elements of the offense . . . the trial court had no jurisdiction to enter a conviction . . . against defendant.” The rule that the omission of an element is a jurisdictional defect is long-standing law in North Carolina, but many other jurisdictions, including the federal courts, have abandoned it. Chief Justice Martin, in dissent, argued that North Carolina should follow suit. This post summarizes the North Carolina rule, explains the controversy in Rankin, discusses why other jurisdictions have left the rule behind, and considers whether the General Assembly might address the issue. Continue reading
Tag Archives: charging documents
The court of appeals recently decided that an indictment alleging that a defendant stole some shirts from “Belk’s Department Stores, an entity capable of owning property,” did not sufficiently identify the victim as an entity capable of owning property. State v. Brawley, __ N.C. App. __, __ S.E.2d __, 2017 WL 4632820 (Oct. 17, 2017). This post summarizes the decision, considers the possibility of further review, and explains how other states handle this issue. Continue reading →
Last year, the court of appeals ruled that a citation that failed to allege an essential element of an offense was sufficient to serve as the State’s pleading. The court concluded that “the standard for issuance of an indictment [which must allege every essential element of an offense to be valid] is not precisely the same as [for] a citation,” and under the more relaxed standard, the citation adequately identified the offense even though it failed to allege an essential element. State v. Allen, __ N.C. App. __, 783 S.E.2d 799 (2016) (an officer cited a motorist for an open container violation, but failed to allege that the container was in the passenger compartment of the defendant’s vehicle; more information about Allen is here).
Last week, a divided panel of the same court ruled that a citation that failed to allege multiple elements of an offense was sufficient. The new opinion raises questions about just how low the bar is for citations, and perhaps for other district court pleadings as well. Continue reading →
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.”
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.