Near the end of last year, the North Carolina Supreme Court decided State v. Taylor, 2021-NCSC-164, 866 S.E.2d 740 (2021), and we summarized the opinion here. This post considers the potential impact of Taylor on other offenses involving threatening speech, and addresses a couple lingering questions that may arise in future cases.
Tag Archives: intent
“True Threats” After Taylor
Is Entering a Store After Having Been “Trespassed” Chargeable as Felony Breaking or Entering?
In a session that I taught for magistrates, I learned that there is a practice in some districts of charging suspects with felony breaking or entering of a building when they enter a store after having been told not to return—commonly referred to as being “trespassed.” This may or may not be the appropriate charge, absent additional supporting facts. Continue reading →
Strict Liability Crimes
In prior posts, I discussed transferred intent and criminal negligence. Intent and criminal negligence, along with malice and willfulness are some of the common states of mind that the prosecution must prove beyond a reasonable doubt to obtain a criminal conviction. With strict liability crimes, the prosecution’s case is easier. Strict liability crimes do not include a mental state as an element of the offense. To obtain a conviction for a strict liability crime, the State need only prove that the defendant committed the prohibited act. Also, certain defenses are unavailable for strict liability offenses. See, e.g., State v. Harris, 171 N.C. App. 127, 131 (2005) (voluntary intoxication is not a defense to a strict liability crime).
Identifying strict liability statutory offenses would be easy if the General Assembly expressly identified crimes as strict liability offenses. However, that does not happen. When a statutory offense is enacted and omits a mental state as an element, the courts must determine whether the legislative intent was to create a strict liability crime. State v. Watterson, __ N.C. App. __, 679 S.E.2d 897, 899 (2009) (“Whether a criminal intent is a necessary element of a statutory offense is a matter of construction to be determined from the language of the statute in view of its manifest purpose and design.”). The North Carolina courts have had several occasions to undertake such an analysis. Among the crimes that our courts have identified as strict liability offenses are:
- G.S. 14-27.2 (first-degree statutory rape). State v. Anthony, 351 N.C. 611, 616 (2000); State v. Rose, 312 N.C. 441, 445 (1984); State v. Ainsworth, 109 N.C. App. 136, 145 (1993) (“Criminal mens rea is not an element of statutory rape.”).
- G.S. 14-27.4 (first-degree statutory sexual offense). See Anthony, 351 N.C. at 616-18.
- G.S. 14-27.7A (statutory rape or sexual offense of a person who is 13, 14, or 15 years old). Anthony, 351 N.C. at 616-18; State v. Browning, 177 N.C. App. 487, 491 (2006) (“Statutory rape under [G.S.] 14-27.7A is a strict liability crime.”); State v. Sines, 158 N.C. App. 79, 84 (2003).
- G.S. 14-269.2 (posses or carry weapons on campus or other educational property). State v. Haskins, 160 N.C. App. 349 (2003).
- G.S. 14-288.8 (possession, etc., of a weapon of mass death and destruction). Watterson, __ N.C. App. __, 679 S.E.2d at 899-903 (the State was not required to prove that the defendant knew the physical characteristics of the shotguns that made them unlawful (barrels of less than eighteen inches)).
Although failure to comply with sex offender registration requirements under G.S. 14-208.11 was at one time interpreted as a strict liability crime, State v. Bryant, 359 N.C. 554, 562 (2005), the statute has been amended, S.L. 2006-247, sec. 8(a), and now requires that the defendant act willfully.
Strict liability crimes often are thought of as minor offenses with relatively light punishment in the area of public health, safety and welfare. However, as the above list indicates, North Carolina’s strict liability crimes include felonies that carry significant punishment. See Watterson, __ N.C. App. __, 679 S.E.2d at 903 (noting that the General Assembly has imposed “fairly harsh” punishments for strict liability offenses). The courts have rejected policy arguments that strict liability should not attach for serious crimes, indicating that such arguments more appropriately are addressed to the General Assembly, the state’s lawmaking body. See Anthony, 351 N.C. at 618; Browning, 177 N.C. App. at 493-94.
The United States Supreme Court has recognized that legislatures may enact strict liability crimes. Lambert v. California, 355 U.S. 225, 228 (1957) (“conduct alone without regard to intent of the doer is often sufficient” for criminal liability; “[t]here is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition”). In North Carolina, constitutional challenges to the imposition of strict liability have failed. Haskins, 160 N.C. App. at 353 (rejecting the defendant’s argument that without a mens rea element, G.S. 14-269.2 violates Equal Protection); Ainsworth, 109 N.C. App. at 145 (rejecting the defendant’s argument that the constitution requires that statutory rape include some mens rea). However, when the strict liability crime involves wholly passive conduct, due process may require that the defendant have notice of the criminality of his or her conduct. Bryant, 359 N.C. 554 (regarding G.S. 14-208.11, which at one point was a strict liability crime).
If a defendant is prosecuted as an aider and abettor to a strict liability crime, a mental state is required. Put another way, “North Carolina case law does not support a theory of vicarious strict liability.” State v. Bowman, 188 N.C. App. 635, 649 (2008) (“[a]lthough statutory rape is a strict liability crime, aiding and abetting statutory rape is not”). Thus, in Bowman, 188 N.C. App. 635, the court of appeals held that the trial court erred by denying the defendant’s request for an instruction that defendant had to know the age of the victims in order to be convicted of aiding and abetting statutory rape. If the defendant is prosecuted for an attempt to commit a strict liability crime, the elements of attempt require intent. Sines, 158 N.C. App. at 85. However, the intent element for an attempted strict liability crime appears to be less stringent than the intent element for aiding and abetting a strict liability crime. In Sines, 158 N.C. App. 79, for example, the court of appeals stated that to be convicted of attempted statutory sexual offense, the defendant must intend to engage in a sexual act. Sines held: attempted statutory sexual offense does not require that the defendant intended to commit a sexual act with an underage person, but only that defendant intended to commit a sexual act with the victim; thus, a defendant’s knowledge of victim’s age or victim’s consent are not defenses to the crime of attempted statutory sexual offense. Id. at 85.
Suppose a defendant acts intending to do one thing but ends up doing something else. For example, suppose the defendant shoots at A, intending to kill A, but misses and kills B, an innocent bystander. Is the defendant criminally liable for the unintended harm to B? Under the doctrine of transferred intent, the answer is yes.
The doctrine of transferred intent provides that when a defendant intends to harm victim A, but ends up harming victim B, the defendant’s criminal liability is determined with respect to his or her intent and conduct towards A. State v. Davis, 349 N.C. 1, 27 (1998) (quoting State v. Wynn, 278 N.C. 513, 519 (1971). If B is killed, the defendant is guilty or innocent exactly as if the fatal act had killed A. Id. (quoting Wynn, 278 N.C. at 519). As it is sometimes said, “intent follows the bullet.” Id. (quoting Wynn, 278 N.C. at 519). Thus, under the doctrine, it does not matter whether the defendant intended to injure B; the defendant need only act with the required intent toward someone (here A). Id. at 38. There are a number of North Carolina cases on point including State v. Locklear, 331 N.C. 239, 244-46 (1992) (doctrine applied as to charge of assault with intent to kill B, who was shot by the defendant while he was shooting to kill B’s mother), Davis, 349 N.C. at 37-39 (an instruction on transferred intent was proper when the defendant engaged in a shooting spree, intending to harm company management but harming another person who happened to be present in the office at the time), and State v. Goode, 197 N.C. App. 543, 550-51 (2009) (instruction on transferred intent was proper as to a charge of attempted murder of B when the defendant drove a car into A and B, intending to kill A). Also, the there is a pattern jury instruction on point. N.C. Pattern Jury Instruction – Criminal 104.13 (“If the defendant intended to harm one person but actually harmed a different person, the legal effect would be the same as if the defendant had harmed the intended victim.”); see also Davis, 349 N.C. at 38 (it is not necessary that the person the defendant intended to harm be named in the jury instructions).
In North Carolina, the doctrine of transferred intent is not limited to situations where an unintended victim suffers harm. Under North Carolina law, the doctrine also permits a conviction when the defendant intended one type of harm but caused another type of harm. Specifically, cases have held that under this doctrine, a defendant may be convicted of discharging a firearm into occupied property when the defendant intended to shoot a person but ended up shooting into property that he or she knew was occupied. State v. Fletcher, 125 N.C. App. 505, 512-13 (1997); State v. Small, ___ N.C. App. ___, 689 S.E.2d 444 (2009). However, application of the doctrine in this context is not without controversy. As a general rule, an intention to cause one type of harm cannot serve as a substitute for a requirement of intention as to another type of harm). 1 Wayne R. LaFave, Substantive Criminal Law 350 & 458-60 (2003). Under this general rule, for example, if a defendant intentionally steals a gas meter out of a house, and as a result a woman is made ill by the escaping gas, the defendant’s intent to steal does not suffice to establish an intent to injure another. Id. at 458-59 (but going on to note that the defendant might be guilty of injuring another in these circumstances if the injury to another offense requires only recklessness or criminal negligence). Of course, exceptions exist, most notably, the felony-murder rule. If while robbing a store with a firearm, the defendant’s firearm goes off, killing bystander A, the felony-murder doctrine allows the defendant to be convicted for A’s murder. See Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime 68 (6th Ed. 2007). The felony-murder rule, however, derives from a statutory definition of murder. See G.S. 14-17 (defining murder). The North Carolina cases extending the doctrine of transferred intent from situations where an unintended victim suffers to harm to those where an unintended type of harm occurs did not note the general rule discussed above or acknowledge that their rulings constituted an expansion of the doctrine of transferred intent.
If you have encountered the doctrine of transferred intent in other contexts or have thoughts on these issues, please post a comment sharing your experience and ideas.