North Carolina Criminal Law is a UNC School of Government Blog. The purpose of the blog is to disseminate information about, and to serve as a forum for the discussion of, North Carolina criminal law and procedure and related topics.
On Wednesday, Craig Stephen Hicks pleaded guilty to murdering Deah Barakat, Yusor Abu-Salha, and Razan Abu-Salha in a Chapel Hill home in February 2015; he received three consecutive life sentences. On a February evening, Hicks angrily confronted the victims at a condo that Barakat and Yusor shared in the same community where Hicks lived. Under the pretense of furthering an ongoing parking dispute, Hicks almost immediately drew a handgun and fatally shot the victims, each of whom was Muslim. Barakat was a student at UNC Dental School, where Yusor had recently been accepted as well, and Razan, visiting the couple for dinner, was attending NC State. Keep reading for more news.
Hate Crimes and Parking Disputes. The Associated Press article in the lead notes two facets of the Hicks case that have generated significant discussion. One is that in the immediate aftermath of the shooting the Chapel Hill Police said that it stemmed from a parking dispute. The victims’ families along with others said that this characterization did not adequately convey that Hicks appeared to target the victims because they were Muslim. The Chapel Hill Police Department released a statement this week apologizing for any pain caused by the earlier statements.
The other issue generating discussion is related, as the victims’ families have expressed frustration that Hicks is not currently being prosecuted on federal hate crime charges. An attorney for the families said that by not pursuing federal charges, “[o]ur government failed this family and our multicultural democracy.” This recent article from the New York Times explores the hate crime issue, and Shea blogged about it in the days after the shooting.
Immigration Cooperation. In the context of discussing a proposal by the North Carolina Sheriffs’ Association regarding ICE detainers, this Greensboro News & Record article notes that the North Carolina General Assembly currently is considering two bills, H370 and S637 which would require, to varying degrees, that local law enforcement officials comply with detainer requests. The News & Record report says that Guilford Sheriff Danny Rogers has announced that he does not support either of the bills or the alternative proposed by the Sheriffs’ Association. The News Roundup has noted several instances this year where North Carolina Sheriffs have reduced their cooperation with ICE.
Barber Trespassing. WRAL reports that late last week former state NAACP leader Rev. William Barber was convicted by a jury of second-degree trespass at the Legislative Building during a protest two years ago. Barber was leading a group sitting outside of Senate President Pro Tem Phil Berger’s office in a call-and-response that some legislative staffers said was disruptive. The group refused requests from General Assembly Police to be quiet or leave and were then arrested.
Asheville Shooting. WLOS reports that a pregnant woman who was shot and killed in Asheville this week recently testified for the state during an ongoing murder trial. Tiyquasha Antwonique Simuel was a witness late last month in the trial of Nathaniel Dixon, who is accused of killing his girlfriend, Candace Pickens, and injuring her son in 2016. Simuel’s unborn child survived the shooting. There were no suspects in Simuel’s death at the time of writing.
Overcriminalization. Readers of this blog know that folks here at the SOG have done some work on the issue of overcriminalization. Jeff wrote a law review article about it a few years back, and Jessie recently has blogged about it here and here. A defense attorney who runs the popular Twitter feed @CrimeADay has just released a book that looks at obscure and absurd federal criminal offenses. In How to Become a Federal Criminal: An Illustrated Handbook for the Aspiring Offender, author Mike Chase covers offenses that range from making an “unreasonable gesture to a passing horse” to selling “improperly shaped spaghetti noodles.” In this interview about the book, Chase notes that one reason for the proliferation of strange offenses is delegation of crime-making authority through laws that broadly make violations of existing and future agency regulations criminal offenses. Jessie’s posts note the similar situation that occurs in North Carolina with ordinance crimes.
Various criminal law provisions use the word “minor.” What is a minor?
The question comes up in different contexts. Elements of certain crimes. Sex offender registration and satellite-based monitoring. Probation conditions that prohibit residing with a minor. Confusingly, the age of “majority” does not usually match up with the age of juvenile jurisdiction or the “age of consent” for various statutory sex crimes.
The general definition of a minor in North Carolina comes from G.S. 48A-2: “A minor is any person who has not reached the age of 18 years.” In the absence of a more specific definition in a particular statutory context, that’s likely the rule—a person age 17 and under is a minor.
Sometimes a criminal statute does have a specific definition of minor. For example, G.S. 14-190.13(3) defines “minor” for specified obscenity and sexual exploitation crimes as “[a]n individual who is less than 18 years old and is not married or judicially emancipated.” (My colleague Sara DePasquale wrote about judicial emancipation here.) Same for G.S. 14-43.10(4) (human trafficking, which also governs involuntary servitude, sexual servitude, and sale of a minor), G.S. 14-203(2) (prostitution), and G.S. 14-269.7(c)(2) (handgun prohibitions for minors).
Some statutes use the word minor without further definition, but the context indicates they are actually referring to subclass of young people. For instance, G.S. 14-50.18 on soliciting a minor to participate in gang activity actually refers to the encouragement, solicitation, or coercion of persons under 16 years of age to participate in criminal gang activity. Subsection (c) then refers to “the minor” more generally, but it is clearly referring back to the persons under 16 described in subsection (a).
Other statutes avoid the word minor altogether and instead spell out a specific threshold for the age of the relevant victim. For example, indecent exposure is a felony in certain circumstances when the defendant is at least 18 and the victim is less than 16. Statutory rape and sexual offense statutes set specific age thresholds, avoiding any ambiguous reference to “minor.” And though often referred to as “indecent liberties with a minor,” the proper name of that crime is indecent liberties with a child. In fact the statute never uses the word minor, instead defining the victim as “any child of either sex under the age of 16 years.” G.S. 14-202.1.
The kidnapping and abduction crimes in Article 10 of Chapter 14 present a particularly confusing illustration of these issues. Kidnapping (G.S. 14-39) and felonious restraint (G.S. 14-43.3) reference age 16 as the threshold at which consent of the victim’s parent or guardian matters as an element of the offense, while enticing minors (G.S. 14-40) and abduction of children (G.S. 14-41) refer to minors generally, presumably meaning anyone under 18.
The plot thickens from there. Kidnapping, abduction of children, and felonious restraint are defined as “offenses against a minor” for reportability purposes, meaning they require sex offender registration when the victim is a minor and the defendant is not the minor’s parent. G.S. 14-208.6(1m). Minor is undefined in that context, meaning we almost certainly fall back to the background rule of under 18. That is the rule under relevant federal law, which defines “minor” for purposes of the Sex Offender Registration and Notification Act (SORNA) as “an individual who has not attained the age of 18 years.” 42 U.S.C. § 16911(14). Of course we know North Carolina isn’t SORNA compliant (we are, as a lawyer friend and I sometimes say, “sorta” compliant), but I assume our legislature intended the same age to apply in North Carolina. Whatever the relevant facts may be, the court of appeals has said a trial court is not limited to the elements of the conviction offense in finding them. State v. Arrington, 226 N.C. App. 311 (2013) (discussed here).
Speaking of sex offenders, additional restrictions apply to defendants whose crime involved the physical, mental, or sexual abuse of a minor. The person may be ordered to enroll in satellite-based monitoring if the court finds that he or she requires the highest possible level of supervision and monitoring, G.S. 14-208.40A, and may be subject to a probation condition barring residence with a minor, G.S. 15A-1343(b2)(4) (not reside with any minor child if the offense involved sexual abuse of a minor); -1343(b2)(5) (not reside in a household with any minor child if the offense involved physical or mental abuse of a minor, unless the court finds it unlikely that abusive conduct will recur and that it would be in the minor’s best interest to reside with the probationer). Again, minor is not statutorily defined in either context, likely leaving us with Chapter 48A’s under-18 rule as the gap-filler.
Suppose the State is prosecuting a defendant for the sexual assault of a young child. Though the child has been identified by name in the arrest warrant and investigative reports provided to the defendant, the State would prefer not to name the victim in the indictment. May it refer to the victim in that document as “Victim #1”?
The state supreme court held in State v. White, ___ N.C. ___, 827 S.E.2d 80 (May 10, 2019), that an indictment alleging a sex offense with a child under 13 must name the child. The White court determined that the phrase “Victim #1” did not name the child as the phrase did not distinguish the victim from other children or victims. And the court rejected the notion that the identification of the victim in other documents related to the case, including the arrest warrant and the original indictment, cured the flaw in the superseding indictment that referred to the minor victim only as “Victim #1.” A court may not, it explained, look to extrinsic evidence to supplement a missing or deficient allegation in an indictment.
A matter of statutory interpretation. The White court based its analysis on the short-form indictment provisions in G.S. 15-144.2(b), which expressly call for “naming the child.” G.S. 15-144.2(a) and (c) likewise require that indictments for other sex offenses name the victim. And a companion statute, G.S. 15-144.1, requires that short form indictments for rape state the name of the victim. Thus, under the rational in White, an indictment charging any rape or sexual offense must name the victim.
Public policy concerns. The court acknowledged the public policy concerns that led the State to omit the minor victim’s name: “Protecting a victim’s identity from the public increases privacy and safety,” Chief Justice Beasley wrote for the court, “and encourages overall reporting of sexual assaults.” ___ N.C. at ___; 827 S.E.2d at 84. Yet, the court deemed itself bound by existing statutes and saw the extension of privacy protections for victims as falling within the purview of the General Assembly. The court cited statutes from other states limiting the disclosure of information related to victims of sexual assault.
Two dissents. In a dissent joined by Justice Newby, Justice Morgan criticized the majority for placing the right of a criminal defendant to notice of the charges and the State’s desire to protect the identity of a minor victim of a sex crime on an “unnecessary collision course” through its “narrow and rigid interpretation” of the law. ___ N.C. at ___; 827 S.E.2d at 84 (Morgan, J., dissenting). Justice Morgan deemed the superseding indictment sufficient because it was filed in the same criminal case bearing the same file number as the warrant and original indictment, which stated the victim’s name, and the dismissal filed by the State expressly noted that the only substantive changes between the two charging instruments were a correction of the dates of the offenses and an increase in the level of the charged felony. Justice Newby wrote separately to note his dissent based on the rationale of the dissent in State v. Rankin, ___ N.C. ___, 821 S.E.2d 787 (2018) (Martin, C.J., dissenting) (discussing the progression of indictment jurisprudence and concluding that the Criminal Procedure act indicates that flaws in indictments should no longer be considered jurisdictional matters) (discussed in this blog post).
What are the State’s options for protecting the privacy of victims in sexual assault prosecutions? White makes clear that omitting the victim’s name altogether from the charging instrument will not suffice. What measures short of that might work?
Using initials. The State may consider using initials in place of a victim’s name. In State v. McKoy, 196 N.C. App. 650 (2009), the court of appeals rejected the defendant’s argument that the indictment charging him with rape and sexual offense was defective because it identified the victim only by her initials. The document named the victim by using her initials, the court reasoned, and it notified the defendant of the charges sufficiently to allow him to prepare a defense and to protect him from double jeopardy.
The court of appeals in White relied on McKoy in deeming the indictment in that case sufficient. But the state supreme court in White distinguished McKoy, nothing that “[e]ven if this Court decides that initials are sufficient to satisfy ‘naming the victim’ requirement, the indictment in this case is still insufficient,” as it did not name the child at all, but rather sought to conceal her identity. ___ N.C. at ___; 827 S.E.2d at 83.
Given the court of appeals opinion in McKoy, the State may choose in an appropriate case to identify a sexual assault victim by her initials. But the State should proceed with caution as the state supreme court made clear in White that it was not endorsing this approach. See also State v. Shuler, ___ N.C. App. ___, 822 S.E.2d 737 (Dec. 18, 2018) (noting that using the victim’s initials “may satisfy the ‘naming’ requirement”).
Sealing the indictment. The White court suggested another possibility: asking the court to seal the indictment to protect victim information from public inspection. My former colleague, Michael Crowell, wrote about access to court records here, noting that courts have inherent authority to seal documents when necessary to serve an overriding public interest. Sealing the entire indictment is a clumsy tool for protecting the victim’s privacy interests, particularly given that the public may have an interest in learning about the charges against the defendant, but the State may consider asking for this relief in an appropriate case.
Otherwise identifying the victim. There may be circumstances in which the State cannot ascertain the identity of a sexual assault victim. Suppose, for example, the defendant is discovered in the act of a sexual assault and the victim flees without identifying herself. Perhaps such a victim could be identified, or “named” by physical description in an indictment based upon all of the information known to the State.
Jeff Welty blogged last week about State v. Capps, __ N.C. App. __, 2019 WL 2180435 (May 21, 2019). The central issue in that case was the state’s use of a misdemeanor statement of charges, but there was a minor detail in the facts that caught my eye because it raises an issue I’ve been asked about more than once.
What is the status and authority of a law enforcement officer when he or she is off-duty?
As Jeff summarized in his post, the defendant in Capps got into an altercation with the passenger in his vehicle while putting air in his tires at a truck stop. The argument escalated to the point that the defendant cut off the end of the hose, dragged the passenger out of the car, and attempted to assault her with the hose end. An off-duty deputy happened to be at the truck stop refueling his vehicle. When the deputy saw what was happening, he approached the defendant, “displayed his badge, and lifted his shirt to reveal his service weapon.” Undeterred, the defendant got back into his vehicle, drove around the store “burning” his tires, and then headed out through an intersection (between two other vehicles), ran a red light, and took off down the highway at a high rate of speed.
If the facts had played out differently and the deputy had succeeded in detaining the defendant in Capps, would it have been a lawful arrest? Was the defendant resisting, delaying, or obstructing an officer by fleeing from the truck stop?
It’s an issue that comes up with some regularity in criminal practice. Many law enforcement officers work second jobs such as providing security at nightclubs and private events, or they may carry their firearm and drive a department-issued vehicle even when they are off-duty, just in case they are unexpectedly needed. If an off-duty officer happens to see an impaired driver out on the road, or witnesses an assault taking place, what action is the officer authorized to take?
What’s the Rule?
I’ve heard it said that “an officer is always on duty.” As a quick rule of thumb, that’s not too far off the mark. The North Carolina Supreme Court has generally expressed the same view, but with some limitations:
A police officer when off duty is still an officer and a policeman having the authority, if not indeed the duty to exercise functions pertaining to his office in appropriate circumstances, without regard to departmental rules relating to hours. […] With regard to our laws dealing with a law enforcement officer’s duties as to arrest or search, there is no distinction between on-duty and off–duty status […] unless it is clear from the nature of his activities that he is acting solely on behalf of a private entity, or is engaged in some frolic or private business of his own.
State v. Gaines, 332 N.C. 461 (1992) (holding that the murder of an officer who was providing security for a hotel was nevertheless committed against an “officer” who was “engaged in his official duties,” which supported pursuing death penalty). Accord, State v. Locklear, 136 N.C. App. 716 (2000) (“Even an off-duty deputy is considered to be acting under the color of state law when the nature of his actions involve official police action to enforce the law.”); State v. Pope, 122 N.C. App. 89 (1996) (applying Gaines to a “law enforcement officer who was engaged in secondary employment at the time of the murder”).
What Are the Limits/Exceptions?
As stated in Gaines, there appear to be two circumstances in which an off-duty officer is not authorized to engage in law enforcement functions.
The first circumstance is when the officer is acting “solely on behalf of a private entity.” For example, G.S. 74C-21(b) states that if an off-duty officer is working directly as an employee for a “licensed security guard and patrol company,” the officer is prohibited from wearing his or her uniform or using any official law enforcement equipment. Those restrictions suggest that an off-duty officer would not retain his or her law enforcement authority while engaged in that type of secondary employment.
By contrast, in the more common scenario where an off-duty officer has been hired through the law enforcement agency to provide security at a private business or direct traffic at an event, he or she typically does retain the dual status of being both an officer and an employee. See, e.g., State v. Lightner, 108 N.C. App. 349 (1992) (defendant properly convicted of assault on an officer where officer was working authorized secondary employment as a security guard at a restaurant). The Raleigh Police Department’s online guide for anyone looking to “Hire an Off-Duty Police Officer” echoes the rationale behind cases like Gaines and Lightner by noting that allowing officers to engage in department-approved, off-duty work “enhances the safety and security of the community at large through the increased presence of law enforcement officers.”
The second circumstance in which an off-duty officer is not authorized to engage in law enforcement functions is when the officer is “engaged in some frolic or private business of his own.” I have been unsuccessful in my search for a case interpreting what constitutes a “frolic” in this particular context. An off-duty officer who is out running errands or attending a sporting event is surely engaged in “private business of his own” at that moment, and perhaps even frolicking. But like the off-duty deputy in Capps, if the officer sees a crime occurring and tries to intervene, hasn’t he or she made a decision to end the frolic or private business and instead carry out his or her “duty to exercise functions pertaining to his office in appropriate circumstances, without regard to departmental rules relating to hours?” If readers have any thoughts on this issue or are aware of any instructive cases, please share them in the comments.
Alternatively, under G.S. 15A-404, even a private citizen has the authority to detain a suspect if there is probable cause to believe the suspect has committed a felony, breach of the peace, a crime involving injury to a person, or a crime involving theft or destruction of property. So presumably an off-duty officer could rely on that authority to interrupt his frolic and detain the suspect until on-duty backup arrives. See G.S. 15A-404(e) (“Surrender to Officer”).
Finally, although this post is primarily focused on the officer’s authority to act while off-duty, it’s also worth noting that the officer’s duty status (and, perhaps more importantly, whether he or she is in uniform) may be a factor in cases charging offenses such as resisting arrest or assaulting an officer, since it is an element of those offenses that the defendant knew or had reasonable grounds to know that the person was an officer or was engaged in the performance of his or her official duties at the time. See, e.g., State v. Burwell, __ N.C. App. __, 808 S.E.2d 583 (2017); State v. Washington, 193 N.C. App. 670 (2008).
What About Jurisdiction?
The offenses in Capps happened in McDowell County, but the off-duty deputy who happened to be at the truck stop was from Swain County. Could the deputy have effected a lawful, out-of-county arrest in this case? The answer may surprise you. Revisit Shea Denning’s post on that issue here.
There have been several recent cases regarding delays in obtaining search warrants for digital devices that have been lawfully seized. For example, in United States v. Pratt, 915 F.3d 266 (4th Cir. 2019), officers seized a suspect’s phone based on the suspect’s admission that it contained nude pictures of an underage girl. The opinion doesn’t say, but I assume that the basis of the seizure was risk of destruction of evidence. However, the officers didn’t obtain a search warrant for the phone for 31 days. On appeal, the Fourth Circuit ruled that the delay was unreasonable in violation of the Fourth Amendment. It turns out that Pratt isn’t alone.
This issue is not unique to digital devices. For example, in United State v. Dass, 849 F.2d 414 (9th Cir. 1988), the court ruled that delays of between seven and 21 days in obtaining search warrants for mailed packages on which drug dogs had alerted was unreasonable because law enforcement had not been diligent in seeking the warrants. However, for whatever reason, there seem to be many more cases regarding delays in obtaining warrants for digital devices than there are regarding other types of evidence.
The seminal case regarding digital devices. By far the most-cited case in this area of law is United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009), a child pornography case in which officers seized the defendant’s hard drive after the defendant admitted during a knock and talk that it contained contraband. Shortly after the seizure, the responsible officer went to a two-week training course out of state. A few days after his return, a total of 21 days after the seizure, the officer obtained a search warrant for the hard drive. The Eleventh Circuit eventually ruled that the delay was unreasonable. Because “[c]omputers are relied upon heavily for personal and business use,” the seizure interfered with a substantial possessory interest. By contrast, the government could point to little justification for the delay – while the officer did go to a training class, the case-specific portion of the warrant application was quite short, and if the officer truly was unable to complete it before he left, he could have passed the case to another officer.
Other recent cases. I’m not aware of a North Carolina case that is closely on point. But similar cases are cropping up in courts across the country. For example, in State v. Rosenbaum, 826 S.E.2d 18 (Ga. 2019), police suspected that a husband and wife had killed their foster child. Officers stopped the suspects’ vehicle, and during a subsequent impoundment/inventory search, took possession of a computer and an iPad. Officers also seized the suspects’ phones when they were transported to jail. More than 500 days later, the state obtained a search warrant for the devices. The defendants moved to suppress any results based on the delay. The trial judge and the state supreme court agreed, citing Mitchell and finding little justification for such an extended delay.
By contrast, in United States v. Fulton, 914 F.3d 390 (5th Cir. 2019), police obtained a search warrant for a house as part of a drug investigation. They seized the defendant’s cell phone during the search. Nine days later, they obtained a second warrant allowing a search of the phone. The search revealed evidence of other crimes, and the defendant moved to suppress based on the delay in seeking the warrant. On appeal, the Fifth Circuit ruled that the delay was reasonable and the motion was therefore properly denied. The court noted that the length of time showed “some attentiveness but not zeal by police,” and observed that the defendant “did not promptly assert his interest in retrieving the phone.” See also Com. v. Arthur, 112 N.E.3d 1189 (Mass. Ct. App. 2018) (holding that an 85-day delay in seeking warrant to search phones in connection with a multi-suspect shooting was not unreasonable where the phones were seized under a warrant and were themselves “evidence of the crime independent of their content,” because they showed how the shooting was planned and coordinated, meaning that the phones would be in the state’s custody until trial in any event).
Factors courts consider. When deciding whether a particular delay is reasonable or not, courts may consider a wide range of facts and circumstances. Among those appearing in the case law are the following:
Whether the initial seizure was with a warrant or was warrantless
Whether the physical devices themselves are evidence that may be retained until trial even if their contents are never examined
Whether the devices’ owners have expressed a desire to have the devices returned
Whether the devices contain information that is important to the owners’ lives and businesses
Whether it is feasible to make a copy of the contents available to the devices’ owners
The length of the delay
The reason for the delay
Although it’s hard to predict how these factors will come together in any particular case, at a minimum, officers may wish to work especially quickly on warrant applications for devices that have been seized without a warrant, particularly when the devices’ owners want the devices back.
The Gaston Gazette reports that Mark Carver has been granted a new trial after being convicted a decade ago of murdering UNC Charlotte student Ira Yarmolenko. A superior court judge ruled that Carver received ineffective assistance of counsel during his first trial. Chris Mumma of the North Carolina Center on Actual Innocence is representing Carver. District Attorney Locke Bell has said he will appeal the ruling and conduct a new trial if that appeal is not successful. Keep reading for more news.
Virginia Beach. Last Friday afternoon, America again witnessed a horrific mass shooting, this time in Virginia Beach. As USA Today reports, twelve people were killed at a public works municipal building when an employee attacked his coworkers with a pistol fitted with a suppressor and extended magazines. The shooter killed people on every floor of the three-story building. Use of the suppressor caused confusion as people did not realize that an attack was unfolding and then had difficulty knowing where the shooter was in the building. Police officers responding to the scene eventually engaged the shooter in a gun battle and took him into custody, though he later died from injuries sustained in the faceoff with police.
The Virginian-Pilot has published several articles about the shooting. The story of Keith Cox putting himself in harm’s way in an effort to make sure that his colleagues were safe is here and here; Cox was shot and killed as he tried to assist others. A survivor’s first-hand account of encountering the shooter, a coworker, while not realizing that he was the perpetrator of the ongoing attack is here. A report that the local medical examiner has found that 9 of the 12 victims were shot in the head is here.
Run, Hide, Fight. As this report from the PBS NewsHour indicates, the fact that the Virginia Beach shooter used a suppressor to muffle the sound of his weapon has caused some people to question the effectiveness of the now-standard advice that people in active shooter scenarios run, hide, and fight – in that order of preference. The report notes that it is difficult to know where to run or hide when you don’t know where gunfire is coming from.
SRO Charged. The New York Times reports that the former Broward County Sheriff’s Deputy who was on duty at Marjory Stoneman Douglas High School when 17 people were killed there in a mass shooting in early 2018 has been charged with seven counts of felony neglect of a child as well as perjury. Scot Peterson was the only armed guard on campus during the shooting and was widely criticized for staying outside the building rather than attempting to stop the attack. Another article from the Times looks at the difficult moral questions wrapped up in expectations of bravery for law enforcement officers responding to life threatening situations.
Fines. The Statesville Record & Landmark reports that attorneys at the Southern Coalition for Social Justice have raised questions about the operation of Administrative Traffic Court in Iredell and Alexander counties. The article says that the administrative courts in those counties may be assessing failure to appear and failure to comply fines improperly. The article says that under current practice in those counties, traffic offenders are assessed a “Failure to Appear fee” and a “Failure to Comply fee” when they do not pay their traffic tickets and costs of court on time. Attorneys quoted in the article say that, in contrast to that practice, the law contemplates that a failure to appear occurs only when a person physically does not attend a calendared court date and that a failure to comply occurs only in situations involving a judgment from a judicial official.
Heat. WECT News reports that guards and inmates in some North Carolina prison facilities must endure extreme heat in the summer months because the prison buildings where they work and are detained do not have air conditioning. The report says that there are 10 prisons in the state which do not have air conditioning systems. The report says that prison officials indicated that use of fans, limitations on outside work, and provision of water are among the strategies used to try to keep people at these facilities comfortable.
When We Were Young. Rumor has it that there’s a popular new employee at the Orange County Courthouse. I’ve been told that she looks like a movie, some say that she sounds like a song. At the risk of starting a fire in your heart, I’m wondering if after all these years you’d like to meet – Adele the Courthouse Facility Dog. Here she is asking for a true copy of an official record at the clerk’s office; here she is working in her office; and here she is lounging with a stuffed duck.
Tamora Williams was the office manager for a construction company. She allegedly used company checks and a debit card to make over 350 unauthorized purchases valued at approximately $41,000. First she was fired, then she was charged with embezzlement.
While the embezzlement charge was pending, Ms. Williams sued her former employer, Mr. Fogleman, for slander and defamation. Mr. Fogleman countersued for the stolen company money. That civil litigation settled in 2017, with Williams paying Fogleman $13,500 and the parties signing an agreement that they “release and fully discharge each other of and from any and all claims, causes of actions, demands and damages, known and unknown, asserted and unasserted, from the beginning of time to the date hereof.” Slip op. at 3.
About a year later, the defendant entered a guilty plea to a single count of embezzlement. The plea agreement called for a probationary sentence, with an understanding that the court would determine the restitution amount—first by resolving the question resolve the question of whether the restitution had already been paid in full through the civil settlement.
The court held a restitution hearing. The trial judge concluded that the civil settlement did not preclude the criminal court from ordering restitution, but that the defendant would be credited for the $13,500 paid through the settlement. The court therefore set the balance owed at $27,704.85.
Through a writ of certiorari, the defendant challenged the restitution order. She argued that the general release clause in the civil lawsuit barred the trial court from ordering further restitution through the criminal case.
The court of appeals disagreed, deciding as a matter of first impression in North Carolina that “civil settlement agreements and restitution awards are separate and distinct remedies,” and therefore the former does not bar the latter. The settlement is intended to compensate the victim for a civil wrong, while criminal restitution serves the additional “rehabilitative, deterrent, and retributive goals of the criminal justice system” by “forc[ing] the defendant to confront, in concrete terms, the harm his actions have caused.” Slip op. at 9 (quoting Kirby v. Florida, 863 So. 2d 238 (Fla. 2003)).
A key factor in the court’s analysis was that the State was not a party to the civil settlement. And because the State was not a party to the agreement, it was not impacted by it. Id. at 13 (“Private settlement or reimbursement agreements neither usurp the State’s ability to uphold criminal statutes nor impede on the State’s “distinct societal goals” of the criminal justice system.”). The court of appeals reviewed similar cases from other jurisdictions and found only one where the court had concluded that the state was precluded from seeking restitution when the parties had settled their claims civilly. See Minnesota v. Arends, 786 N.W.2d 885, 889 (Minn. Ct. App. 2010).
Before Williams, we knew by statute that prior receipt of a restitution award did not abridge the right of a victim to bring a civil action against the defendant for damages arising out of the defendant’s offense. G.S. 15A-1340.37(a). We didn’t know about the reverse situation. After Williams, that appears to be a two-way street, with neither option precluding the other.
I wonder, though, whether future release agreements might be crafted in a way that more clearly states that, in addition to whatever claims might be discharged as between the parties, the victim will not pursue restitution in any related criminal case—or that he or she expressly reserves the right to do so. I also wonder what happens when this criminal restitution order gets docketed as a civil judgment.
May a law enforcement officer who personally investigates, but does not observe, a vehicle crash testify as to his opinion about who was driving the vehicle? Does the answer depend upon whether the officer is qualified as an expert in accident reconstruction? The court of appeals considered those questions in State v. Denton, ___ N.C. App. ___ (June 4, 2019), decided yesterday.
Facts. Timothy Denton and his friend Danielle Mitchell were in Denton’s mother’s car on August 1, 2014, when it ran off the road and wrecked. Denton and Mitchell were ejected from the car, and Mitchell died at the scene. Denton was severely injured and was air-lifted to the hospital. The vehicle smelled of alcohol, beer bottle caps were inside the vehicle, and a sealed bottle of beer was found on the ground by Mitchell’s body. Hospital blood tests revealed that Denton had a blood alcohol concentration of .18 and that benzodiazepine and cannabinoid were present in his urine. Circumstantial evidence indicated that Denton, who suffered a severe head injury and could not remember the day of the accident, was driving the car when it crashed. Denton was indicted for felony death by vehicle.
Opinion Testimony. Two law enforcement officers testified for the State at trial. The first, Trooper Fox, responded to the accident and investigated the scene. He found long strands of brown or dark-colored hair trapped in the passenger side of the vehicle and windshield glass. Mitchell’s hair was dark brown. Fox also measured the distance from the driver’s seat to the gas pedal and to the steering wheel. Fox, who acknowledged that he was not an expert in accident reconstruction, testified that he believed Denton, who was 5’11” tall was driving at the time of the crash because “‘the seating position was pushed back to a position where I did not feel that Ms. Mitchell [who was 5’2”] would be able to operate that vehicle or reach the pedals.’” Slip op. at 5. Denton objected to Fox’s testimony.
The second officer, Trooper Souther, analyzed the crash and testified as an expert in accident reconstruction. Souther testified that he had three theories about how the crash happened and that the one he deemed the most plausible was the one in which the defendant was the driver. He testified, however, that he could not conclusively state that Denton was driving.
Appeal. Denton argued on appeal that the trial court erred by permitting Trooper Fox to testify to his opinion that Denton was driving the car when it crashed. The court of appeals agreed, concluding that the trial court abused its discretion in allowing this testimony, that the error was not harmless, and that Denton was entitled to a new trial.
What are the rules for opinion testimony by lay witnesses?N.C. Evid. R. 701 provides that a lay witness may testify about opinions or inferences that are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the testimony or the determination of a fact in issue.
A lay witness generally is not permitted to testify as to his or her opinion when the witness is able to relate facts to the jury in a manner that enables the jury to draw its own inferences and conclusions from those facts. Thus, an officer who did not see an accident or the placement of the vehicles at the time of an accident may not express an opinion as to which driver had the right of way at the time vehicles entered an intersection. See Joines v. Moffitt, 226 N.C. App. 61 (2013). An officer likewise may not testify as to his conclusion about the point of impact between two cars based on a post-crash investigation. See State v. Wells, 52 N.C. App. 311 (1981). And an officer should not be permitted to testify to conclusions that the jury can easily draw for itself, such as that injuries to the left side of the body are consistent with a person having been seated on the left side of a wrecked vehicle. Cf. State v. Smith, __ N.C. App. ___, 803 S.E.2d 703 (2017) (unpublished) (citing State v. McCloud, 310 S.W.3d 851 (Tenn. Crim. App. 2009) as illustrating “the possibility that no particular expertise is required for a witness—or a juror—to find that the driver of a vehicle is more likely to suffer left-side injuries in an accident” but concluding that the defendant failed to establish that as a matter of law, regardless of the previous experience of a witness, lay testimony that in general the person on the left side of a vehicle is likely to have left-side injuries is always inadmissible).
If, however, the witness’s observations put the witness in a position to judge the facts more accurately than those who have not had those opportunities, the witness may properly testify as to opinions drawn from those observations. Thus, a witness who has personally observed a person may testify as to his or her opinion as to whether the person was impaired by alcohol or drugs. See, e.g., State v. Lindley, 286 N.C. 255 (1974) (patrol officer with five years’ experience was properly permitted to testify to his opinion that the defendant was under the influence of some drug when that opinion was based on the conditions he observed and on the defendant’s response to the officer’s questions at the scene). And a witness who has seen a car being driven may properly testify to his or her opinion about the vehicle’s speed. See Insurance Co. v. Chantos, 298 N.C. 246 (1979) (“[A] person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed.”)
The problem with Fox’s testimony. The court determined that Trooper Fox’s testimony exceeded the bounds of permissible opinion testimony from a lay witness. The court reasoned that Fox was in no better position than the jury to consider the evidence indicating that the defendant was the driver, which included evidence that the car was owned by the defendant’s mother, that the defendant was the only person who ever drove the vehicle, the location of Ms. Mitchell’s hair in the passenger area of the car, and the position of the driver’s seat. Fox essentially testified as an accident reconstruction expert, without being qualified as an expert and without having sufficient facts to support an expert opinion. The insufficiency of the facts was revealed by Souther’s testimony. Souther used his expertise to analyze the same facts and yet was unable to conclude with certainty that the defendant had been driving.
The error was not harmless. The court noted that whether Denton was driving “was the only issue in serious contention at trial.” Slip op. at 13. If he was, the court opined that the remaining evidence, which included evidence of “speeding, reckless driving, alcohol consumption, and defendant’s high blood alcohol level . . . would essentially guarantee a guilty verdict.” Id. Thus, the court concluded that Denton was entitled to a new trial.
What about accident reconstruction testimony? The Denton court stated that a witness must be qualified as an expert to testify about conclusions formed from analyzing the scene of a crash. Such a witness must, of course, be qualified under the general provisions of N.C. Evid. R. 702 and his or her testimony must satisfy the reliability requirements of that rule. One type of expert accident reconstruction testimony is specifically sanctioned by Rule 702(i), which allows an accident reconstruction expert who has performed a reconstruction of a crash, or has reviewed the report of investigation, to give an opinion as to the speed of a vehicle even if the witness did not see the vehicle moving.
Consistency, inconsistency, and consistent inconsistency. The Denton court distinguished State v. Ray, 149 N.C. App. 137 (2002), in which the court found no error in permitting a law enforcement officer to testify that the cuts on the victim’s hand were not consistent with a traffic accident. Ray was different, Denton said, because in Ray a medical expert confirmed the lay witness’s opinion. Denton also is arguably inconsistent with State v. Cash, 234 N.C. App. 116 (2014) (unpublished), in which the court found no error in allowing a law enforcement officer to testify, based on his post-crash investigation, that the defendant’s vehicle had rolled more than once. The Cash court considered the officer’s conclusions to be permissible shorthand statements of fact that described the accident scene he observed rather than a technical opinion on accident reconstruction.
These inconsistencies are not particularly surprising, given the way in which courts often have blurred the lines between lay and expert opinion testimony, particularly when it comes to law enforcement officers testifying based on their experience. See 1 McCormick On Evidence § 11 (7th ed. 2013). While testimony based on specialized knowledge, including that gained from training and experience, is generally classified as expert testimony, courts in North Carolina elsewhere have permitted law enforcement officers to testify as lay witnesses to opinions informed by their investigative training and experience. See, e.g., United States v. Jones, 218 F. App’x 916, 917 (11th Cir. 2007) (officer properly allowed to testify under Rule 701 that, through his experience, he had learned that the quantity and packaging of narcotics can indicate whether narcotics are intended for distribution and that the marijuana quantity seized in the case at hand indicated that it was intended for distribution); State v. Howard, 215 N.C. App. 318 (2011) (detective properly allowed to give lay opinion testimony that subtotals on a receipt indicated that the credit card was stolen because defendant would not have known how much money was available on the card and would have purchased a few items at a time to be sure the card would clear); State v. Crandell, 208 N.C. App. 227 (2010) (detective’s testimony regarding the calibers of the bullets retrieved from the vehicle was based on his personal experience and observations relating to various calibers of weapons and was admissible under Rule 701).
A knot worth untangling. Denton demonstrates the significance of identifying the types of testimony from law enforcement officers that fall on the expert side of the divide. Not only is a defendant entitled to pre-trial notice of expert witnesses and discovery of their reports and opinions, see G.S. 15A-903(a)(2), but expert testimony must satisfy reliability requirements that do not apply to lay opinions. In Denton, the expert opinion that was subject to more rigorous requirements and review reached less certain conclusions than the one admitted under the looser lay opinion standard. The ready availability of a contrasting opinion on the same subject matter illustrated the potential deficiencies of the lay opinion and thus made all the difference on appeal.
Several years ago (some might say that’s an understatement) I wrote The Law of Self-Defense in North Carolina, in which I looked at over 200 years’ worth of North Carolina court opinions on self-defense and related defenses, such as defense of others and defense of habitation. The book’s approach reflected that North Carolina was a common law state when it came to self-defense. The right to act in self-defense depended primarily on the authority of court decisions. The General Assembly’s adoption in 2011 of three defensive force statutes—G.S. 14-51.2, G.S. 14-51.3, and G.S. 14-51.4—changed that. An understanding of the law of self-defense in North Carolina now must begin with the statutory law of self-defense.
I must admit that I did not fully appreciate the significance of the statutes when they first appeared. I saw them as revising, supplementing, and clarifying the common law. Now that we have almost twenty reported appellate decisions that have grappled with the statutes (as well as some unpublished decisions), I can see I had it wrong. The statutes create independent defenses, with their own requirements. The enormous body of common law remains significant, both as a means for interpreting and applying the statutes and as a source of additional rights. It is important to recognize, however, that the statutes do not necessarily align with the common law.
The statutory defenses affect both the right to use defensive force outside the courtroom in the real world and the procedures used in the formal world of the courtroom for judging acts of defensive force. The statutes affect such important procedural issues as whether evidence is relevant and admissible, the circumstances in which the jury should be instructed about defensive force, and the wording of those instructions.
Below are some initial takeaways from the cases, which illustrate the importance of closely examining the statutory provisions in every case involving defensive force. In future posts, I intend to discuss the impact of the statutes on specific rules and procedures.
The statutory defenses. G.S. 14-51.2 creates a statutory right to use defensive force in one’s home, workplace, or motor vehicle under the conditions stated there. There are obvious and subtle differences between the statutory defense and the common law defense of habitation. Among other things, the statute’s protections extend to motor vehicles as well as homes and businesses and include presumptions that insulate a lawful occupant’s use of deadly force against someone who unlawfully and forcibly enters those areas. The cases recognize the statute’s expanded scope. For example, in State v. Kuhns, ___ N.C. App. ___, 817 S.E.2d 828 (2018), the court recognized that the statutory protections apply to the “curtilage” of the home, including in that case the yard around the defendant’s home, and not just the home and structures attached to the home. See also State v. Copley, ___ N.C. App. ___ (May 7, 2019) (directing pattern jury committee to revise pattern instruction to include broader definition of curtilage), temp stay allowed, __ N.C. ___ (May 23, 2019). The statute does not merely enlarge the common law defense of habitation. It creates a separate and different right to use deadly force in one’s home, workplace, or motor vehicle (discussed further in my blog post here).
G.S. 14-51.3 creates a statutory right to use force in defense of one’s self or another person, which differs from the common law on defense of person. Most notably, the statute includes an explicit stand-your-ground provision, stating that a person does not have a duty to retreat “in any place he or she has the lawful right to be” when the person meets the requirements of the statute. G.S. 14-51.3(a). In several cases, the courts have reversed convictions for the failure to instruct the jury about this right. See, e.g., State v. Lee, 370 N.C. 671 (2018); State v. Bass, __ N.C. __, 819 S.E.2d 322 (2018); State v. Irabor, ___ N.C. App. ___, 822 S.E.2d 421 (2018); State v. Ayers, ___ N.C. App. ___, 819 S.E.2d 407 (2018). Other cases working their way through the courts will show the extent to which the defense-of-person statute diverges from the common law in other respects.
G.S. 14-51.4 elaborates on the right to use defensive force in the above two statutes. Thus, a person may not rely on the statutory defenses if he or she was “[w]as attempting to commit, committing, or escaping after the commission of a felony.” G.S. 14-51.4(1). The courts are currently considering the meaning of this provision, which differs from the phrasing of common law aggressor principles. One panel of the Court of Appeals has applied the felony disqualification literally, holding that a defendant who had a previous felony conviction and was unlawfully in possession of a firearm was not entitled to a jury instruction on the statutory right of defense of person. The North Carolina Supreme Court has agreed to hear the case. See State v. Crump, ___ N.C. App. ___, 815 S.E.2d 415 (2018), discretionary review allowed, ___ N.C. ___, 820 S.E.2d 811 (2018). (The Court of Appeals opinion is discussed further in my blog post here.) In a more recent case, another panel of the Court of Appeals didn’t mention the felony disqualification in considering whether the trial judge should have instructed the jury on defensive force. In State v. Coley, ___ N.C. App. ___, 822 S.E.2d 762 (2018), the defendant had a broken leg and was using crutches and a wheelchair. His evidence showed that he had been repeatedly assaulted by the victim and, when the victim reentered the defendant’s home, the defendant managed to climb back into his wheelchair, retrieve a gun, and shoot the victim. The majority found that the trial judge erred in failing to instruct the jury on self-defense and defense of habitation. The dissent would have found no error. Neither the majority nor the dissent addressed whether the felony disqualification applied to the defendant, who had a previous felony conviction and was actually convicted in the case of being a felon in possession of a firearm. The North Carolina Supreme Court has also accepted review of this case.
The common law still matters. Although the statutes establish independent rights to use defensive force, the common law still matters. For one, the statutes restate bedrock common law principles. For example, the defensive force statutes incorporate the concept of “reasonable necessity”—that is, that a person may use defensive force if reasonably necessary to defend against harm (although reasonableness is presumed in the statute on defensive force in the home, workplace, or motor vehicle). Common law decisions involving this central tenet of defensive force therefore remain significant in interpreting and applying the statutory provisions. Among other things, as under the common law, a defendant may offer evidence about why he or she had a reasonable apprehension of harm from the victim, including evidence about prior violence by the victim. See State v. Irabor, ___ N.C. App. ___, 822 S.E.2d 421 (2018) (holding that such evidence supported instruction on statutory self-defense). [The admissibility of evidence about the victim in self-defense cases is discussed further in my blog post here]. The cases rely on other common law principles in addressing the statutory defenses, such as the requirement that the evidence must be considered in the light most favorable to the defendant when determining whether the defendant is entitled to a jury instruction on the defense. Id.; see also State v. Coley, above.
The common law also may be a source of additional rights. The statute on defensive force in the home, workplace, and motor vehicle explicitly states that it does not repeal or limit other common law defenses. The statute on defense of person does not contain such a provision, but it also does not state that it abrogates common law rights. Imperfect self-defense, which reduces murder to voluntary manslaughter, is an example of a common law defense that isn’t mentioned in the statute but probably remains viable. It is difficult to imagine that the General Assembly intended to eliminate that common law doctrine. Cf. State v. Lee, 370 N.C. 671, 678–79 (2018) (Martin, C.J., concurring) (observing that defendant may be entitled to perfect defense of another based on statutory defense of person in situations in which the common law only allows imperfect defense of another).
Going forward. Defensive force cases have always been complicated, perhaps more so than necessary. See Brown v. United States, 256 U.S. 335, 343 (1921) (Holmes, J.) (observing that the law of self-defense has had a “tendency to ossify into specific rules”). They will probably get more complicated in the near future as the courts sort out the meaning and impact of the defensive force statutes. Based on my understanding of the cases so far, the best course is to figure out the statutory rights in each case, use the common law as appropriate in interpreting and applying the statutes, and identify the potential applicability of common law rights in addition to the statutory rights. These principles will determine such critical issues as whether the defendant is entitled to instructions to the jury on defensive force, what instructions should be given, and how the instructions should be worded, which have been central concerns in many of the recent decisions.
The ability to file a misdemeanor statement of charges is a superpower for district court prosecutors, enabling them to overcome virtually any error in a criminal pleading with the stroke of a pen. Arraignment in district court is kryptonite, robbing the superpower of its efficacy. This dynamic was on full display in State v. Capps, __ N.C. App. __, __ S.E.2d __, 2019 WL 2180435 (May 21, 2019), a recent opinion by the court of appeals.
Facts. Ben Capps stopped at a truck stop, got in an argument with a passenger in his vehicle, cut off the end of the truck stop’s air hose, attempted to strike the passenger with it, and when confronted by an off-duty deputy, drove off with the piece of hose.
Procedural history. A magistrate issued an arrest warrant for Capps, charging him with misdemeanor larceny and other offenses. Capps was arrested and pled guilty in district court. He appealed for trial de novo in superior court, and the following exchange took place:
THE COURT: The State has a motion to amend.
[PROSECUTOR]: Yes, sir. I have drafted it on a misdemeanor statement of charges. The history of this case briefly is that this was a misdemeanor which was pled guilty to in [district] court based on the charging language, and it was a time-served judgment, and so it was not scrutinized closely. The charging language alleges that the personal property and the property stolen in the larceny are the property—Love’s Truck Stop. I am moving to amend the owner of that property to Love’s Travel Stop & Country Stores, Incorporated. May I approach?
THE COURT: Yes, sir. What says the defendant?
[DEFENSE COUNSEL]: No objection, Your Honor.
The judge granted the State’s motion and the State filed a statement of charges containing the revised language. The defendant was convicted and appealed.
Appeal. Capps argued, and a majority of the court of appeals panel agreed, that the State violated G.S. 15A-922 by filing a statement of charges on its own initiative in superior court. Subsection (d) of the statute provides that a “prosecutor may file a statement of charges upon his own determination at any time prior to arraignment in the district court.” Such a statement of charges is very flexible. It “may charge the same offenses as the [earlier pleading] or additional or different offenses.” However, the majority determined that this subsection had no application because the statement of charges in this case was not filed “prior to arraignment in the district court.”
Under subsection (e) of the statute, the State may file a statement of charges at or after arraignment in district court “[i]f the defendant by appropriate motion objects to the sufficiency of [an earlier pleading] . . . and the judge rules that the pleading is insufficient.” A statement of charges filed under this provision is more limited. It “may not change the nature of the offense.” The majority determined that this subsection also had no application, because the defendant had not objected to the sufficiency of the arrest warrant. Thus, the State had no valid pleading on which to rely and the defendant’s conviction had to be vacated.
The State contended that what happened was in the nature of an amendment, and so was not subject to the technical limitations on statements of charges, but the majority disagreed: “While the State may assert that it merely intended to amend the arrest warrant, the newly filed misdemeanor statement of charges superseded the arrest warrant and became the pleading of the State.” In support of this conclusion, the majority cited State v. Wall, 235 N.C. App. 196 (2014), discussed in this prior post, which ruled that filing a statement of charges “change[s] the nature of the original pleading entirely.”
The dissent. A dissenting judge would have ruled that the statement of charges was not filed based on the prosecutor’s “own determination” and so was not subject to the time limitations in G.S. 15A-922(d). Instead, the dissenting judge viewed the document as “a new pleading filed with consent of all parties and permission of the Court,” and therefore as a permissible way to remedy a technical defect in the arrest warrant.
Analysis and a practice pointer. If the document filed in this case is properly viewed as a statement of charges, I see the case as a straightforward win for the defendant, for the reasons given by the majority. But the State seems to have argued that what the prosecutor presented to the trial judge was not a statement of charges at all, but rather an amendment written up using a statement of charges form, AOC-CR-120. (In retrospect, the prosecutor probably wishes that he or she hadn’t used that particular form, but I imagine that he or she wanted to have a “clean” document.) Both the prosecutor and the trial judge mentioned “amend[ing]” the warrant, so that’s at least a plausible characterization of what happened.
If that’s the right way to view it, there’s no timing problem, because district court pleadings may be amended “at any time prior to or after final judgment.” G.S. 15A-922(f). But a different issue then crops up. An amendment is permissible only “when the amendment does not change the nature of the offense charged.” Id. Would it change the nature of the offense charged to strike through “Love’s Truck Stop” and replace it with “Love’s Travel Stop & Country Stores, Incorporated”?
Historically I have thought that changing the name of the victim in a way that cures a fatal defect changes the nature of the offense charged, even if the “old name” and the “new name” are very similar. See State v. Cathey, 162 N.C. App. 350 (2004) (deeming it improper to amend a larceny indictment to read “Faith Temple Church—High Point, Incorporated” rather than “Faith Temple Church of God” because doing so would cure a fatal defect and would be a substantial alteration of the indictment), overruled on other grounds, State v. Campbell, 368 N.C. 83 (2015) (holding that describing an entity as a church sufficiently signifies that it is capable of owning property). Cf. State v. Abbott, 217 N.C.App. 614 (2011) (ruling that it was an improper substantial alteration to amend the name of the victim in an indictment from “Cape Fear Carved Signs, Incorporated” to “Cape Fear Carved Signs,” a sole proprietorship). On this view, because a pleading charging that “Love’s Truck Stop” was the victim of a larceny would be fatally defective for failing to identify an entity capable of owning property, an amendment adding a reference like “Incorporated” would change the nature of the offense charged and so should not be allowed.
I am not as confident about that these days, in part because the appellate division has been chipping away at some of the formality regarding entities capable of owning property. This shows in cases like Campbell; State v. Brawley, 370 N.C. 626 (2018) (holding that “Belk’s Department Stores, an entity capable of owning property” adequately alleged that the victim was an entity capable of owning property); and most recently, State v. Speas, __ N.C. App. __, __ S.E.2d __, 2019 WL 1996453 (May 9, 2019) (holding that “Sears Roebuck and Company” adequately alleged that the victim was an entity capable of owning property). Furthermore, there’s a relatively recent unpublished case closely on point allowing an amendment adding a corporate signifier. See State v. Lewis, 230 N.C. App. 145, 2013 WL 5629425 (Oct. 15, 2013) (unpublished) (finding no error where the State was allowed to amend the victim’s name in a larceny citation from “Sally Beauty” to “Sally Beauty Holdings, Inc.” and stating that the amendment did not change the nature of the offense charged).
If the State could properly have amended the warrant in Capps, then the outcome of the appeal turned on whether what the State presented was an amendment written on a statement of charges form (which is how the prosecutor and the trial court described it) or was truly a statement of charges filed pursuant to G.S. 15A-922 (which is consistent with the caption of the document and is how the court of appeals majority viewed it). That’s a pretty fine distinction, so the practice pointer for prosecutors is simply not to use the statement of charges form when amending a pleading. Especially after arraignment in district court, when the statement of charges isn’t a superpower anymore.