After State v. Singleton, 386 N.C. 183 (2024), an indictment is not rendered facially invalid by failure to allege all the elements of a crime. One issue that remains unresolved is the consequence of failure to allege the State’s theory. Two post-Singleton cases decided last year found reversible error when the trial court instructed the jury on a theory not alleged in the indictment. See State v. Wilson, 910 S.E.2d 407 (N.C. Ct. App. Dec. 31, 2024); State v. Little, 296 N.C. App. 424 (2024). More recently, in State v. Tate, No. COA24-450 (N.C. Ct. App. June 18, 2025), the Court of Appeals cited Singleton in support of its conclusion that the trial court did not err by instructing the jury on a theory that was not alleged in the indictment. This post examines the opinion in Tate.
A Theory of Conviction
For many crimes, a single offense can be proven in more than one way. First-degree murder may be committed by premeditation and deliberation or during the perpetration of a felony. G.S. 14-17; State v. Gillard, 386 N.C. 797, 831 (2024). Kidnapping may be committed by confinement, restraint, or removal, and for various prescribed purposes. G.S. 14-39(a); State v. Lucas, 353 N.C. 568, 588 (2001). Rape may be committed by force and against the will or with an underage victim. G.S. 14-27.21 (forcible); 14-27.24 (statutory); State v. Ross, 249 N.C. App. 672, 678 (2016).
As regards the morphology of a crime, the word theory generally refers to the particular avenue by which the State seeks to obtain a conviction. See State v. Wilson, 385 N.C. 538, 545 (2023) (“felony murder is a theory”); State v. Malachi, 371 N.C. 719, 731 (2018) (constructive possession is a theory). As regards the parties to a crime, the word theory may also be used to describe the nature of the defendant’s participation. See State v. Collington, 375 N.C. 401, 404 (2020) (theory of acting in concert); State v. Golder, 374 N.C. 238, 252 (2020) (aiding and abetting). It is error, generally prejudicial, for the trial court to instruct on a theory not supported by the indictment. State v. Ditenhafer, 373 N.C. 116, 127 (2019); State v. Tirado, 358 N.C. 551, 574 (2004).
Two cases decided late last year illustrate the Court of Appeals’ application of this pre-Singleton rule:
The evidence in State v. Wilson, 910 S.E.2d 407 (N.C. Ct. App. Dec. 31, 2024), showed that the defendant confined his step-granddaughter in a bathroom until she took pictures of her breasts. Id. at 409. The defendant was indicted for kidnapping based on a theory of sexual servitude. Id. At trial, however, the trial court instructed the jury on kidnapping based on a theory of involuntary servitude. Id. Noting that sexual servitude and involuntary servitude are different crimes, both potential bases for a conviction of kidnapping, the Court of Appeals concluded that the trial court reversibly erred by instructing the jury on a theory not charged in the indictment. Id. at 414.
The evidence in State v. Little, 296 N.C. App. 424 (2024), showed that the defendant assaulted his fifteen-year-old son with a pair of needle-nosed pliers. Id. at 426. The defendant was indicted for misdemeanor child abuse based on a theory that he inflicted physical injury. Id. at 431. At trial, however, the trial court instructed the jury that the defendant could be convicted of child abuse if the State proved that the defendant inflicted physical injury or created a substantial risk of physical injury. Id. at 432. Noting that child abuse by inflicting physical injury is a separate offense from child abuse by creating a substantial risk of physical injury, the Court of Appeals concluded that the trial court reversibly erred by instructing on a theory not charged in the indictment. Id. at 434. Writing separately, Judge Carpenter worried that this result “seems to turn on an elevation of form over substance so seemingly disfavored” by Singleton. Id. at 438 (Carpenter, J. concurring).
Second-Degree Rape
The sexual assault in Tate occurred in 2011. At that time, second-degree rape was defined as vaginal intercourse with another person: (1) by force and against the will, or (2) who is, inter alia, mentally incapacitated and the defendant knew or should reasonably know the victim’s condition. G.S. 14-27.3(a) (2011). Mentally incapacitated then meant “a victim who due to any act committed upon the victim is rendered substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act.” G.S. 14-27.1(2) (2011).
In the case of a sleeping, or similarly incapacitated victim, sexual intercourse is rape, and the State may proceed upon either theory: by force and against the victim’s will, or with a person who is mentally incapacitated. State v. Moorman, 320 N.C. 387, 392 (1987). Strictly construing the statutory definition of mentally incapacitated, however, the Court of Appeals held that voluntary intoxication does not suffice. State v. Haddock, 191 N.C. App. 474, 483 (2008). The definition was amended in 2019 to remove the language so construed by Haddock. See S.L. 2019-245 § 6(c).
Even before Singleton, an indictment need not allege all the elements of the offense charged when the legislature has prescribed abbreviated charging language, a so-called short form. See State v. Jerrett, 309 N.C. 239, 259 (1983). Hence, it is sufficient in describing rape to allege that the accused “did ravish and carnally know the victim, naming her, by force and against her will and concluding as required by law.” G.S. 15-144.1(a) (2011). If the victim was a female child below the age of consent, it is sufficient to allege that the accused “did carnally know and abuse a child under 13.” Id. at (b). If the victim was mentally incapacitated, it is sufficient to allege that the defendant “did carnally know and abuse a person who was . . . mentally incapacitated.” Id. at (c).
Though G.S. 15-144.1 relieves the State of the obligation to allege each element of rape, still the State may be bound by the theory alleged in its indictment. Accordingly, when the defendant was indicted for rape by force and against the victim’s will, it was fundamental error for the trial court to instruct the jury on vaginal intercourse with a child under thirteen years of age. State v. Williams, 318 N.C. 624, 631 (1986); see also State v. Williams, 303 N.C. 507 (1981) (fatal variance when indictment for sexual offense alleged cunnilingus and anal intercourse but evidence showed object penetration); cf. State v. Hedgepeth, 165 N.C. App. 321, 327 (2004) (indictment alleging elements of rape precluded instruction on other charges potentially supported by short-form). At the same time, allegations in an indictment beyond the elements of the offense may be treated as surplusage. See State v. Bollinger, 192 N.C. App. 241, 246 (2008), aff’d per curiam, 363 N.C. 251 (2009).
State v. Tate
In June 2011, the victim in State v. Tate, No. COA24-450 (N.C. Ct. App. June 18, 2025), went to the pool at her friend’s apartment complex, got drunk, and passed out. She awoke in a strange bed with a man having vaginal intercourse with her. The victim fled and made her way to the hospital, where a nurse completed a sexual assault kit. About eight years later, the defendant was identified as a suspect based on the DNA profile obtained from the sexual assault kit. Tate, Slip Op. pp. 2-5.
In October 2021, the defendant was charged with second-degree rape. The indictment alleged that the defendant “did carnally know and abuse [the victim], who was at the time was [sic] mentally incapacitated, physically helpless and by force and against her will. The defendant knew that [the victim] was mentally incapacitated and was physically helpless.” Tate, Slip Op. p. 8. At trial, however, the trial court instructed the jury that the defendant was guilty if the defendant knew or should reasonably have known that the alleged victim was mentally incapacitated and/or physically helpless.” Tate, Slip Op. p. 9 (emphasis added). The defendant was convicted and appealed.
Before the Court of Appeals, the defendant argued the trial court erred by instructing the jury on “the constructive knowledge element” of rape when the indictment alleged actual knowledge of the victim’s condition. Tate, Slip Op. p. 7. The Court of Appeals noted that, under G.S. 15-144.1, an indictment for second-degree rape need not allege each element of the offense. It observed that Singleton upheld an indictment for second-degree rape that alleged neither actual nor constructive knowledge. Tate, Slip Op. p. 10. The Court of Appeals concluded that the indictment here put the defendant on sufficient notice. The defendant’s indictment, it said, “was not fatally deficient in not including the element of constructive knowledge, nor was the trial court precluded from including it in the jury instruction due to its absence from the indictment.” Tate, Slip Op. p. 11.
Conclusion
It is not impossible to square Tate with Wilson and Little. Unlike in Tate, the offenses in Wilson (kidnapping) and Little (child abuse) involved crimes for which there is no statutorily authorized short-form charging language. Further, unlike in Tate, the jury instructions in Wilson and Little permitted the jury to convict based on essentially an uncharged offense: an underlying felony of involuntary servitude in Wilson, a different variety of child abuse in Little. One might articulate the rule that emerges from these cases as follows: when the State is obliged in its indictment to chart a course, the trial court in its jury instructions is forbidden from deviating from that course.
Still, the citation to Singleton in Tate does not entirely resolve the tension. The result in Singleton was compelled by the rule that slight variation from the language prescribed by a short-form statute does not invalidate a short-form indictment. See Singleton, 386 N.C. at 214. Had the indictment in Tate ended with an allegation that the defendant did carnally know and abuse the victim, who was at the time mentally incapacitated, the analogy would brook no dissent. The problem is that the Tate indictment went further, specifically alleging that the defendant knew the victim’s condition. The Court of Appeals simply did not grapple with the issue of whether that superfluous allegation bound the State to prove actual knowledge. That was the theory alleged. True, the word theory does not appear in Tate. But it’s hard to construe the variable element as anything else.
Despite Tate, prosecutors are advised to be wary in drafting indictments. When short-form charging language is prescribed by statute, as for rape, the better practice is to track the prescribed language precisely. Prosecutors who include additional details may find themselves bound to prove the unnecessary allegations upon danger of dismissal should the evidence at trial vary substantially. Taken together, Wilson, Little, and Tate illustrate that Singleton has not resolved all the issues that may arise from the choices prosecutors make when crafting the State’s pleading.