The North Carolina legislature recently passed S.L. 2021-68 which amends the existing financial transaction card theft statute to include knowingly possessing, selling, or delivering a skimming device. Continue reading
Tag Archives: crimes
The latest cumulative supplement to North Carolina Crimes is now available. It incorporates legislation enacted and cases decided through December 31, 2020.
You can buy the book here. Purchase of the supplement includes free unlimited access to the online version of Crimes from the time of purchase until May 1, 2022. Online access is granted through a code printed in the front pages of the hard copy publication.
Instructions for accessing the online version are included with the book. For more ordering options related to Crimes, please click here.
Judicial Branch employees may procure copies through the AOC’s online store or contact the Purchasing Services Division (purchasing@nccourts.org) with questions. Please note that the AOC requests prior approval from division managers before ordering through its online store.
Reversing the Court of Appeals, the NC Supreme Court recently held, in State v. Floyd, that attempted assault is a crime in North Carolina. Continue reading →
Category: Crimes and Elements, Uncategorized | Tags: assault, attempt, attempted assault, crimes, floyd, state supreme court
I’ll save you the suspense: Yes. Read on for an explanation.
Category: Crimes and Elements, Uncategorized | Tags: crimes, elements, involuntary manslaughter, jury instructions, lesser included, second degree murder
The General Assembly recently enacted a new “revenge porn” statute. S.L. 2015-250. The law actually gives the offense a tamer name: Disclosure of Private Images. The statute takes effect December 1, 2015, and applies to offenses committed on or after that date. Here’s what you need to know about the new crime.
Counting the number of sections in a chapter of the General Statutes is pretty dull work. But doing it over and over again in order to see the growth in a single chapter over time may yield interesting results. In preparation for a panel discussion about overcriminalization this evening, I counted the number of sections in Chapter 14 over time. Here’s what I found:
I’m interested in readers’ reactions to the chart. Worrisome? Surprising? Appropriate? Meaningless without context?
For those in the “meaningless without context” camp, I’ll add two additional observations. First, just counting the number of sections in Chapter 14 almost certainly understates the extent to which the criminal code has grown over the years. Many of the sections themselves have grown, with new subsections defining additional crimes. And of course, many new crimes are not located in Chapter 14 at all, but rather are scattered throughout the General Statutes. Second, the Model Penal Code contains just 114 sections defining crime, by my count, while the federal criminal code contains thousands of offenses.
So, has our criminal code grown too quickly, too slowly, or is it just about right? How fast is too fast? How many crimes are too many? What sort of test can one apply to decide whether overcriminalization is a serious problem or a needless worry? Please weigh in.
Concluding that current State criminal statutes “do not sufficiently recognize the increased danger to the public and do not sanction appropriately acts of terrorism,” S.L. 2012-38, the General Assembly recently enacted a new terrorism offense. The new crime applies to offenses committed on after December 1, 2012. Id. Here’s what you need to know:
Statute: G.S. 14-10.1
Elements: A person guilty of this offense
(1) commits an act of violence
(2) with the intent to
(a) intimidate the civilian population at large, or an identifiable group of the civilian population, or
(b) influence, through intimidation, a government’s conduct or activities.
Punishment: As a felony that is one class higher than the offense which constitutes the underlying act of violence, except that a violation is a Class B1 felony if the underlying act of violence is a Class A or B1 felony. G.S. 14-10.1(c).
Notes:
Element (1). G.S. 14-10.1(a) defines the term “act of violence” to include:
- murder under G.S. 14-17;
- manslaughter punished under G.S. 14-18;
- any Chapter 14 felony that includes an assault or use of violence or force against a person;
- any felony that includes either the threat or use of any explosive or incendiary device; and
- any offense that includes the threat or use of a nuclear, biological, or chemical weapon of mass destruction.
The statute does not define the phrase “explosive or incendiary device.” That term is defined in other statutory provisions. However, it is not clear which of these definitions is meant to apply to this offense. Specifically, G.S. 14-50.1 defines an “explosive or incendiary device or material” as including “nitroglycerine, dynamite, gunpowder, other high explosive, incendiary bomb or grenade, other destructive incendiary device, or any other destructive incendiary or explosive device, compound, or formulation; any instrument or substance capable of being used for destructive explosive or incendiary purposes against persons or property, when the circumstances indicate some probability that such instrument or substance will be so used; or any explosive or incendiary part or ingredient in any instrument or substance included above, when the circumstances indicate some probability that such part or ingredient will be so used.” G.S. 14-72(b)(3) defines an “explosive or incendiary device or substance” as “any explosive or incendiary grenade or bomb; any dynamite, blasting powder, nitroglycerin, TNT, or other high explosive; or any device, ingredient for such device, or type or quantity of substance primarily useful for large-scale destruction of property by explosive or incendiary action or lethal injury to persons by explosive or incendiary action.” That section further provides that the definition does not include “fireworks; or any form, type, or quantity of gasoline, butane gas, natural gas, or any other substance having explosive or incendiary properties but serving a legitimate nondestructive or nonlethal use in the form, type, or quantity stolen.” G.S. 14-72(b)(3).
Presumably the phrase “any offense that includes the threat or use of a nuclear, biological, or chemical weapon of mass destruction” refers to the nuclear, biological, or chemical weapon of mass destruction offenses in G.S. 14-288.21 to -288.24.
Element (2)(b). The governments covered include the federal government, any state government, and any unit of local government. G.S. 14-10.1(b)(2).
Multiple convictions and punishments. A defendant may be convicted and punished for both this offense and the underlying offense that constitutes the act of violence. G.S. 14-10.1(c).
Seizure and forfeiture of property. All real and personal property used or intended for use in the course of, derived from, or realized through this offense is subject to seizure and forfeiture pursuant to G.S. 14-2.3 and G.S. 14-7.20. G.S. 14-10.1(d). However, the forfeiture is subordinate to any security interest in the property taken by a lender in good faith as collateral for the extension of credit and recorded as provided by law. G.S. 14-10.1(d). Also, no property may be forfeited against an owner who made a bona fide purchase of it, or a person with rightful possession of the property, without knowledge of the criminal violation. Id.
Related Offenses
Malicious Damage by Use of Explosives of Incendiaries
False Bomb Report Offenses
Perpetrating a Hoax by Use of a False Bomb or Other Device
Making a False Report Concerning Mass Violence on Educational Property
Nuclear, Biological, or Chemical Weapon of Mass Destruction Offenses
Manufacture, Possession, etc. of a Machine Gun, Sawed-Off Shotgun, or Weapon of Mass
Destruction
Gang-Related Crimes
Riot Offenses
Jessie Smith has completely revised and updated the indispensable reference work North Carolina Crimes. The seventh edition is now available for purchase from the School of Government. The book has its own web page, here, where you can see the Table of Contents and a sample of the text, and can order the book if it fits your needs. The AOC has already committed to a bulk purchase, so many state employees should receive a copy soon. Jessie has worked incredibly hard on this revision, so congratulations to her for seeing it through.
Valentine’s day is coming up, which got me thinking about a fact pattern I ran into a while back. Dan wants to get his girlfriend, Ann, a present — say, roses — but doesn’t want to pay for the gift. So Dan tells Victor, a florist, that he’ll pay Victor in a few days if Victor will deliver the roses to Ann. Victor agrees, and he delivers the flowers, but Dan, who never intended to pay, doesn’t come through with the money. Did Dan obtain property by false pretenses in violation of G.S. 14-100?
The answer turns on whether Dan “obtain[ed]” property from Victor. If Dan wanted the roses for himself, the answer would clearly be yes. Likewise, if Dan asked Victor to give him the flowers so that he could turn around and give them to Ann, the answer would be yes. But in the fact pattern above, Dan never takes possession of the flowers, so it is reasonable to ask whether he actually “obtain[ed]” them. The dictionary defines “obtain” as “to come into possession of” or to “get, acquire, or procure.” I can imagine Dan’s lawyer relying on this definition to argue that Dan didn’t commit obtaining property by false pretenses.
Dan’s argument is a plausible one, but I don’t think that our appellate courts would endorse it. (They haven’t decided this issue yet.) Whether they would find that Dan obtained the property by “procur[ing]” it for Ann, or whether they would find that Dan constructively possessed the property when he directed Victor to deliver to it Ann, I don’t know, but the gravamen of Dan’s conduct is obtaining the flowers by fraud, and I suspect our appellate courts would interpret G.S. 14-100 to encompass it.
As always, I’d like to know your thoughts and experiences — just post a comment. Although the above example is based on a bricks-and-mortar retail transaction, the same issue arises, probably much more frequently, when someone orders gifts online while posing as someone else. In that situation, of course, there are usually other crimes, such as identity theft or financial transaction card fraud, that can be charged.
